Collins and Ricardo
[2014] FamCA 1155
•19 December 2014
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2014] FamCA 1155 |
| FAMILY LAW – CHILDREN – CONTRAVENTION – Where the father’s application alleges 19 counts of contravention – Where various allegations did not support a competent allegation and were dismissed – Where 12 allegations were put to the mother – Where the Court found that the mother contravened the orders without reasonable excuse on three occasions – Where the proceedings will be restored to the list to consider any consequential orders and the application is otherwise dismissed. |
| Family Law Act 1975 (Cth) ss 70 NAC, 70 NAE |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
FILE NUMBER: | SYC | 4959 | of | 2009 |
| DATE DELIVERED: | 19 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 26 and 27 August 2013; 18, 19 and 20 February 2014;17 – 19 November 2014 |
REPRESENTATION
| APPLICANT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | Autore and Associates Solicitors and Barristers |
Orders
The Court found that the mother contravened without reasonable excuse:
a)order 3.5 made on 12 January 2012 in that she failed to advise the father of her address;
b)order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 10.00 am on 6 October 2012; and
c)order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 2.00 pm on 7 October 2012.
The proceedings are to be listed on a date convenient to the parties and the Court in relation to any consequential orders arising under Division 13A of Part VII of the Family Law Act1975 (Cth).
Otherwise the father’s Contravention Application filed 20 March 2013 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo 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 SYDNEY |
FILE NUMBER: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Collins (“the father”), seeks that Ms Ricardo (“the mother”) be dealt with for contravening parenting orders made by this Court on 12 January 2012. The orders relate to their daughter S (“the child”), who is now six years of age.
The father’s Application was filed 20 March 2013 and was the first of a number of similar applications filed by the father. The father subsequently also filed contempt applications. The mother subsequently also filed contravention proceedings.
HEARING
The hearing of the father’s Application was first fixed for 26 and 27 August 2013. At the end of 27 August 2013, the father’s case had closed. The Application was dismissed in respect of allegations 2, 3, 4, 7, 13, 14 and15. The mother was called on to present her evidence in respect of allegations 1, 5, 6, 8, 9, 10, 11, 12, 16, 17, 18 and 19. The proceedings were adjourned to 18 February 2014 for three days.
On the adjourned days the mother presented her evidence and was cross-examined. During the course of the hearing the father withdrew allegation 6. At the conclusion of 20 February 2014 the hearing was adjourned to 8 and 9 July 2014. The proceedings were also listed for five days commencing on 18 August 2014 for the hearing of the balance of the parties’ contravention and contempt applications, if practicable.
On 8 July 2014 the mother was not present but was represented by her solicitor, who appeared by telephone. On the application of the mother the hearings fixed for 8 and 9 July 2014 and 18 – 22 August 2014 were vacated and the matter was listed for hearing the father’s application, and if time permitted, other contravention and contempt applications filed by the parties, over five days commencing on 17 November 2014. It was noted on 8 July 2014 that the adjournment occurred during the mother’s cross-examination. When the hearing resumed on 17 November 2014, the father’s cross-examination of the mother continued. Cross-examination of the mother concluded on 18 November 2014. Re-examination was brief and there was no case in reply. On 19 November 2014, submissions commenced.
There was a discussion about whether the father’s application should be fully determined before the hearing commenced of the mother’s application and the later applications of the father. The mother’s solicitor submitted that any consequential orders in the current proceedings should await the determination of the mother’s application. The father strongly opposed that course, arguing that the Court should conclude the hearing of the current matter, including as to issues of costs, before the commencement of hearings of subsequent applications. For reasons given on the day, it was decided that the current proceedings should be finalised. On that basis, on 19 November 2014 and at the conclusion of the parties’ submissions on whether the Court could find that there was a contravention without reasonable excuse, judgment was reserved.
SHORT HISTORY
There is little background material in the evidence before me but I do not understand the following to be controversial.
The father was born in 1962 and at the last date of hearing was 52 years of age.
The mother was born in 1963 and as at the last date of hearing was 51 years of age.
The parties met in September 2007, commenced cohabitation in January 2009 and separated on 1 August 2009.
The child S is the only child of the parties’ relationship. She was born in 2008 and at the date of these reasons is six years of age.
Proceedings for parenting and property settlement were commenced, first in the Federal Magistrates Court, as the Federal Circuit Court was then known. The proceedings were subsequently transferred to this Court and were heard by Justice Watts over a total of nine days in June/July and November of 2011. Final orders were made on 12 January 2012.
At the time of the hearing before Watts J, the child lived with the mother and her then partner, Mr W, on a rural property 400 kilometres south east of Perth, Western Australia. The father then lived, as he does now, on his farming property in the City 2 region on the South Coast in the State of New South Wales.
The main provisions of very detailed orders made on 12 January 2012 provide for the mother to have sole parental responsibility for the child and for the child to live with the mother. The orders provide that unless otherwise agreed, the child is to spend time with her father each year for two periods of two hours in a contact centre in City 1, Western Australia and for two periods of two hours in a contact centre in Wollongong, New South Wales. The orders provide for time at alternate centres in the event that either party has a significant change of residence. The orders also provide for communication between father and daughter and for the passage of information to the father about her.
On 1 February 2012 the father lodged an appeal against the orders but as at the date of these reasons, the appeal had not been decided.
Fresh parenting proceedings have also commenced and the hearing of those proceedings is awaiting the determination of the father’s appeal.
As was the case before Watts J, the father appeared without legal representation and the mother was represented by Mr Autore, solicitor. The father was assisted at the bar table by his present wife, Ms I.
At the commencement of the hearing on 26 August 2013 the sequence of events at the hearing was explained for the benefit of the father. The father’s application contained 19 allegations. The wording of the allegations to be put to the mother was settled with him. In relation to some of the allegations, in my view the application did not support a competent allegation. As to those allegations, the application was dismissed. Brief reasons were given for those rulings.
The father asked for further reasons and they are as follows:
Each allegation must be based on the terms of the Application. The Application must allow the respondent to understand the case she has to meet and the matters her evidence is required to address. A respondent is not required to search through the accompanying affidavit to try to understand what case she must meet. The published form of the Contravention application reminds the applicant to set out in the appropriate part of the form, the date, time and place of each act or omission alleged to constitute a contravention of an order. The form gives examples of the style of allegations. Although not criminal proceedings, contravention proceedings are among the most serious proceedings available before this Court. The potential sanctions include imprisonment and fines. As a result, the rules of evidence are usually strictly applied and the informed consent of a respondent would normally be required before an allegation could be put that did not directly arise from the wording of the application. In respect of each allegation, the applicant bears the onus of establishing the contravention. The respondent is not required to prove that she did not contravene the orders.
The following allegations were not put to the mother and insofar as those allegations are concerned, the Application was dismissed on 26 August 2013.
Allegation 2
The Application records that the act or omission occurred “2012-2013” at Location NN in Western Australia and Cairns. The statement of the contravention is “The mother never complied with this order yet gave evidence [the child] is in pre-school in Western Australia. This is did contravene order 3.2”.
Order 3.2 of the orders of 12 January 2012 requires:
3. The mother shall:
…
3.2.keep the father advised as to any pre-school or school attended by [the child];
The Application does not on its face allow an allegation to be fairly put to the mother. It is not clear what is meant by “2012-2013”. This issue arises in respect of a number of allegations. The father submitted that he meant to convey a period of 12 months from January 2012. In my view that could not be the meaning of the quoted figures. The possible meanings are: all of both calendar years or the 2012-2013 financial year. In my view the mother was not required to address this allegation.
Allegation 3
The Application records that the act or omission occurred “2012-2013” at Location NN in Western Australia and Cairns. The statement of the contravention is “The mother has never complied with this order yet gave evidence [the child] is in pre-school in Western Australia. The father has never had anything sent to him from [the child’s] preschool. This is did contravene order 3.3”.
Order 3.3 requires:
3.The mother shall:
…
3.3.authorise any pre-school or school attended by [the child] to provide to the father all information ordinarily provided to parents, including information about how the father can order school photographs, provided that the father shall pay any costs of the school arising out of his requests;
Again there is a bald assertion about a breach and in my view the statement did not support an allegation that could be fairly put. There is the “2012-2013” problem and if the child was at a pre-school, the father has deduced from the lack of contact from any pre-school that the mother did not do something. In any event, the father had no evidence to support the allegation.
Allegation 4
The Application records that the act or omission occurred “2011-2013” at Location NN in Western Australia and Cairns. The statement of the contravention in the Application is “The father in 3 years has not been notified of any illness [the child] has suffered. This is not in keeping with conversations with [the mother’s] partner Mr [W]. This is a contravention of order 3.4”.
Order 3.4 requires:
3.The mother shall:
…
3.3.in the event that [the child] suffers illness or injury requiring hospital admission, advise the father, and provide all contact details necessary for him to obtain information from professionals treating [the child]; and
....
The Application does not on its face allow an allegation to be fairly put to the mother. Of course there could be no obligation in 2011 under an order made in 2012. There is not even the assertion that the child suffered an illness or injury requiring hospital admission, let alone when or where.
Allegation 7
The Application records that the act or omission occurred “2012” at City 2 in NSW. The statement of the contravention is “Although [B Contact Centre] does not allow for use of their contact centre for clients with final orders, when [PP] Contact Centre was found at [City 2] and available dates given the mother and her lawyer failed to respond to any requests or answer correspondence. This is a contravention of order 5.2”.
As I understand the father’s evidence[1], what he refers to as the “[PP] Contact Centre” is intended as a reference to the “[correct spelling of the PP Contact Centre]” based in Town RR, New South Wales.
[1] Annexure 12 to the father’s affidavit
Order 5.2 requires:
5.Unless otherwise agreed between the parties in writing, the father may spend time with [the child] as follows:
….
5.2for two periods each year, each period consisting of two hours on two consecutive days, at the [B Contact Centre] in Wollongong (“the Wollongong contact centre”).
…
Order 11 provides:
11.In the event that either party moves any significant distance from their current residential address whilst orders 5, 6 and 7 are operative, then the parent who has moved will nominate an alternate contact centre that is nearest geographically to them and available to facilitate [the child] spending time with her father pursuant to orders 5, 6 and 7 and the provisions of orders 5, 6 and 7 will operate as if those orders referred to that alternate contact centre.
The Application does not on its face allow an allegation to be fairly put to the mother. This is in fact an assertion that the mother did not facilitate an alternate arrangement under order 11. It transpires that there is no probative evidence of the first proposition of the allegation. I understood that Watts J found that the father lived on a farm outside City 2. On that basis order 11 could not be triggered by the father’s relocation to City 2. If I am incorrect about that then the father would need to demonstrate that a move from somewhere to the City 2 area triggered order 11 – that, for example, Wollongong to City 2 was a significant distance. I am not sure that case could be made out. Secondly, there is no suggestion that the father proposed an alternate contact centre. Therefore Order 11 is not satisfied. Again there is a bald assertion about a breach and in my view the facts did not support an allegation that could succeed.
Allegation 13
The Application records that the act or omission occurred “January 2013” at City 2. The statement of the contravention is “The father and (h)is partner on 3/1/13 moved full time to his farm at [City 2]. Two alternative contact services were provided to the mother and her lawyer to enable contacts. These requests were unanswered. The mother refused to allow Christmas contact to happen. This is a contravention of order 11”.
Order 11 requires:
11.In the event that either party moves any significant distance from their current residential address whilst orders 5, 6 and 7 are operative, then the parent who has moved will nominate an alternate contact centre that is nearest geographically to them and available to facilitate [the child] spending time with her father pursuant to orders 5, 6 and 7 and the provisions of orders 5, 6 and 7 will operate as if those orders referred to that alternate contact centre.
This allegation was struck out on the basis that it was effectively a duplication of 12. The application does not on its face allow an allegation to be fairly put to the mother. As the breaches were recorded as occurring at City 2, the allegation relies on an alternate arrangement under order 11. Even if Order 11 was triggered, on its face the allegation does not assert that there was an available contact centre in City 2.
During his cross-examination on 27 August 2013 at about 12.45 pm the father gave evidence to the effect that there is no contact centre in City 2. Again there is an assertion about a breach but the facts did not support an allegation that could be fairly put.
Allegation 14
The Application records that the act or omission occurred “2012-2013” at Location NN in Western Australia and Cairns. The statement of the contravention is “The mother has only adhered to Order 12.1 on two occasions. The father objected after the first occasion to the poor quality photograph that was sent. It was so poor quality it could not be printed. As the mother has not done this bi-monthly this is a contravention of order 12.1.”
Order 12.1 requires:
12. The mother shall:
12.1.not less than once in every two months, email the father to inform him about [the child’s] health, progress and well-being, and any notable events for [the child], and provide him by email with at least one current digital photograph of [the child];
The allegation was struck out on the basis that there was no detail allowing an allegation to be fairly put to the mother.
It is not clear what was meant by “2012-2013”. In effect the allegation reverses the onus and would require the mother to establish that she complied with the order, rather than the father establishing the breach. An allegation based on the phrasing in the application would not allow the mother to know the case she has to meet. There is a bald assertion about a breach that could not support an allegation that could be fairly put.
Allegation 15
The Application records that the act or omission occurred “2012-2013” at Location NN in Western Australia and Cairns. The statement of the contravention is “The mother has refused to give the father her address, so in effect has prevented the father sending his pre purchased gifts or photographs. This is a contravention of order 12.2.”
Order 12.2 requires:
12.The mother shall:
…
12.2do nothing to prevent [the child] from receiving any gifts, cards, and photographs sent to [the child] by the father care of the mother’s postal address; and
It transpired that the father thought the order required the provision of a residential address. He conceded that he had a postal address for the mother. The father conceded that this allegation could not succeed.
As to the remaining allegations, a wording was settled with the father and they were then put to the mother. The allegations were in the following terms:
[The mother’s name] it is alleged that you contravened without reasonable excuse, order:
1. 3.1 made on 12 January 2012 in that you did not advise the father in advance that you intended to relocate the child [S] born … 2008 to Cairns in September 2012;
5. 3.5 made on 12 January 2012 in that you failed to advise the father of your address;
6. 5.1 made on 12 January 2012 in that you did not allow any visits between the father and the child at the [City 1] Contact Centre in 2012;
8. 6.1.1 made on 12 January 2012 in that you failed to advise the father by 1 February 2013 of the periods when [the child] would be available to spend time with the father in Queensland;
9. 6.1.4 made on 12 January 2012 in that you failed to present [the child] to the [City 1] Contact Centre at 10.00am on 6 October 2012;
10. 6.1.4 made on 12 January 2012 in that you failed to present [the child] to the [City 1] Contact Centre at 2.00pm on 7 October 2012;
11 7.1.1 made on 12 January 2012 in that you failed to advise the father by 1 February 2013 of the periods when [the child] would be available to spend time with the father in [City 2];
12. 7.1.3 made on 12 January 2012 in that you failed to present [the child] to the [City 2] Contact Centre in January 2013;
16. 12.3 made on 12 January 2012 in that you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of [the child’s] birthday;
17. 12.3 made on 12 January 2012 in that you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of Christmas;
18. 12.3 made on 12 January 2012 in that you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of Fathers Day; and
19. 12.3 made on 12 January 2012 in that you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of the father’s birthday.
The mother told me that she did not admit each of the allegations.
Through her solicitor the mother conceded service of the Application and the affidavits and that she had knowledge of the orders of 12 January 2012. In relation to the individual allegations the mother made the following concessions:
| Concessions | ||
| Allegations | Orders Required | Conduct Conceded |
| 1. | Not conceded | Conceded |
| 5. | Conceded | Not Conceded |
| 6. | Conceded | Not Conceded |
| 8. | Conceded | Not Conceded |
| 9. | Conceded | Conceded |
| 10. | Conceded | Conceded |
| 11 | Not Conceded | Not Conceded |
| 12. | Not conceded | Conceded |
| 16. | Conceded | Not Conceded |
| 17. | Conceded | Not Conceded |
| 18. | Conceded | Not Conceded |
| 19. | Conceded | Not Conceded |
During the course of the hearing the father withdrew allegation 6. I understood that to be based on an acceptance that he was afforded an opportunity to have time with the child at the City 1 Contact Centre in 2012.
The hearing proceeded in respect of allegations 1, 5, 8, 9, 10, 11, 12, 16, 17, 18 and 19. During submissions the father withdrew allegation 12.
Ms I and the father were cross-examined and re-examined.
There is no formal provision in these proceedings for a ruling on a prima facie case but the mother’s solicitor made brief submissions about some of the allegations. Thereafter the mother was required to present her evidence in relation to all of the remaining allegations.
It transpired that rather than being aimed at resolving relevant factual disputes much if not all of the focus of the father’s cross-examination was to discredit the mother as a witness. Indeed, even before the conclusion of submissions, the father sought that the mother be dealt with for perjury and later, that her testimony be referred to the Director of Public Prosecutions for consideration of perjury charges. Unfortunately, despite considerable discouragement from the bench, the issues addressed in cross-examination were largely irrelevant or peripheral. The father variously asked the mother about the amount paid by the mother to register her car in Queensland; the sale price of a property in Sydney Suburb TT; the cost and nature of medical treatment undergone by the mother in June / July 2012; whether or not the mother received a call from Anglicare at City 1 on 6 October 2012; and whether the $200,000 received by the mother in early September 2012 came from Mr W. None of those questions were relevant to the allegations and if any, they had only the most peripheral connection with the mother’s case about a reasonable excuse.
Credit findings in Court proceedings are not a relevant end in themselves. Particularly in this jurisdiction where the focus is usually on a history spread over years, if not decades, rather than on a particular incident and where there is often a heightened emotional overlay to interactions between the parties, credit findings are rare. The human brain is not a computer and even the memory of a witness who is otherwise motivated to give careful and frank testimony, is not always reliable. In the process of storing and recalling events, a witness is likely to innocently colour the recollection with his or her perceptions about an event. Two otherwise reliable witnesses can recall the same event in very different terms.
When possible and appropriate, credit findings are made to assist in the resolution of disputes about relevant facts. There were few relevant and significant factual issues between the parties where the evidence comprised only the uncorroborated testimony of two or more witnesses. In these proceedings, as is usually the case, disputed facts fall to be determined issue by issue and it is not possible to prefer one witness over another on all issues or to entirely exclude the evidence of one party.
Allegation 1
The operative words are:
…. you did not advise the father in advance that you intended to relocate the child [S] born … 2008 to Cairns in September 2012
The orders provide:
3.The mother shall:
3.1. advise the father of any long-term decision that she proposes to make about [the child];
What constitutes a contravention of an order is exclusively defined:
[s 70NAC] s 70NAC Meaning of “contravened” an order
70NAC 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
It is an agreed fact that the father was given no advance notice of the mother’s relocation to Cairns.
The mother’s solicitor identified the mother’s case in relation to this allegation. He said that she thought she was not required to give advance notice and that she herself did not know until later, that she was relocating. It is the mother’s case that she decided to move to Cairns in late October 2012. The mother concedes that she did not notify the father of the move.
It is the mother’s evidence that before 21 August 2012 she was living on a rural property in the South of Western Australia, in a relationship with a Mr W. It is her evidence that on 21 August 2012 Mr W asked her to leave the farm. It is the mother’s evidence that she and the child briefly lived with friends in Perth and then spent about a month in hotels in that city. At a later episode of the hearing the mother gave evidence that Mr W thereafter made her a conditional offer of accommodation and to that extent, her earlier evidence was incorrect. The mother gave evidence that she had nowhere else to live in Western Australia and ultimately took up an offer of accommodation from a niece in Townsville. It is the mother’s evidence that she gave instructions to her solicitor, Mr Autore to let all parties know of her circumstances. It was the mother’s evidence on 20 February 2014 and on 18 November 2014 that Mr W said something to her on 3 October 2012 which lead her to decide that their relationship was finally over.
The father attempted to make something of an apparent inconsistency in that evidence. In my view the mother’s evidence is clear enough. She was told to leave the farm on 21 August 2012 and did so. She said that she did not believe that Mr W was serious and that his communications were unclear thereafter. The mother said that she confronted Mr W on 3 October 2012. He had a booking to go overseas with a girlfriend and he said to the mother: “you know you’re not coming back here”.
The mother bought a property in Cairns in late October 2012.
In the context of another allegation, the mother gave evidence that when she travelled to Townsville, she did not realise that she was leaving Western Australia permanently. As to why she did not notify the father as soon as she realised she was staying in Far North Queensland, the mother variously said that she was not aware that she had to notify the father except about a new contact centre and that she had a sort of breakdown.
The mother contravened the order if she intentionally failed to comply with the order; or made no reasonable attempt to comply with the order – pursuant to s 70 NAC.
The wording of order 3.1: “advise the father of any long-term decision that she proposes to make” necessarily means that she was required to give advance notice of such a decision. Whether she intended to relocate when she first left Western Australia or not, there came a point, if not earlier, when she bought a house in Cairns, when the mother knew she intended to relocate from Western Australia to Far North Queensland. The question is: was that decision made in September 2012. If the decision was not made in September 2012 this allegation could not succeed. Notice was in fact given to the father of the mother’s relocation when he and Ms I attended on the offices of the mother’s solicitor in Wollongong on 5 November 2012[2].
[2] Confirmed by annexure 10 to the father’s affidavit
The facts are suggestive but are not sufficient to find on the balance of probabilities that the mother breached the order as alleged. Only the mother can say when she formed the intention that would trigger the obligation to give the father notice. She says it was formed in October 2012. It is the mother’s evidence that she did not make the decision to relocate until after she was in Cairns. There is no surrounding circumstance that points to that decision being made in September 2012. The mother gave unchallenged evidence that she left the farm with a small bag of personal possessions and left many of her possessions, including for example, her passport, at the farm when she left. Although the maker of particular payments is in dispute, it is common ground that some payments were made by Mr W to the mother. It is equally possible that those payments could have signalled the permanent end of his relationship with the mother, a repayment of debt or a payment made to address her immediate need for funds. In any event that evidence does not exclude the mother’s version of events.
The onus of proof is on the father. The application will fail on this allegation.
Allegation 5
The operative words are:
…. you failed to advise the father of your address
Order 3.5 provides:
3. The mother shall:
…
3.5keep the father informed of her address, the address of any pre-school or school attended by [the child], the mother’s email address, and the mother’s telephone number.
The mother’s solicitor informed the father on 5 November 2012 that the mother had (earlier) moved to Queensland but neither he nor the mother provided a precise address. Even at the date of the contravention hearings, only the street and suburb were identified by the mother.
The mother conceded that the orders required her to provide the father with her address but in relation to the address of Mr W’s farm, she did not concede that she had failed to do so. The mother variously contended that the farm’s Perth postal address that was given to the father, was sufficient and that she did not have to give him an address because the father already knew it. In the latter regard it was the mother’s case that the father had otherwise given evidence that he knew the address. In relation to her Cairns address, it was the mother’s case that she did not provide that address to the father because she was afraid of him.
In my view the order is plain. There is a separate order (Order 18) dealing with the mother’s obligation to provide the father with her postal address. It is apparent that Order 3.5 required the mother to provide her residential address. Cutting through the various assertions, the mother concedes that she did not provide the father with her addresses. The evidence is equivocal about the Western Australian address. The mother was in Court before Watts J on 2 November 2011 when the father gave evidence[3] that he knew the address of the mother and Mr W. In my view the mother was entitled to rely on the father’s testimony. In my view the breach is not established in respect of notification of the mother’s Western Australian address.
[3] Exhibit 4 of 27 August 2013
However, there is no doubt about the mother’s failure to provide the father with her Cairns address. The mother deliberately breached the order in not providing that address to the father.
It falls to the mother to make a case for a reasonable excuse.
What it means to have a reasonable excuse is not exclusively defined in the legislation. The examples given in s 70NAE include:
(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.
OR
(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).
The mother deposed that she gave instructions to her solicitor, Mr Autore to let all parties know of her circumstances. In oral evidence the mother offered several versions of her evidence about this issue. She asserted that it was her interpretation of the orders that “address” meant location and not a specific residential address. She said that she was reinforced in that view because during the original hearing she was not required to reveal her residential address. Ultimately, the mother’s evidence was to the effect that she did not provide her Queensland addresses to the father because she was and remained afraid of him. She asserted that the New South Wales police were involved in her relocation to Western Australia, because of those fears.
The mother’s case about her fears about the father was argued before Watts J and his Honour nevertheless made the order requiring the mother to provide her address to the father. Even if, as the mother asserts, the New South Wales police relocated the mother to Western Australia in 2009 or they suggested or advised that relocation (and those propositions have not been substantiated), those events long preceded the final orders. There is no significant evidence of events after the final orders were made, that would justify further fears or concerns. The mother did not challenge the orders of 12 January 2012. If she misunderstood her obligations, in my view the mother should not be excused in relation to the breach.
The mother has not established a reasonable excuse and therefore the allegation is made out in relation to the mother’s Cairns address.
Allegation 8
The operative words are:
…. that you failed to advise the father by 1 February 2013 of the periods when [the child] would be available to spend time with the father in Queensland
Order 6.1 provides:
6.For the purposes of order 5.1:
6.1.the mother shall:
6.1.1. not later than 1 February 2012 and each year thereafter, advise the father of two periods of two consecutive days in Term 1 Western Australian school holidays and two periods of two consecutive days in Term 3 Western Australian school holidays when she can make [the child] available at the [City 1] contact centre;
Order 11 provides:
11.In the event that either party moves any significant distance from their current residential address whilst orders 5, 6 and 7 are operative, then the parent who has moved will nominate an alternate contact centre that is nearest geographically to them and available to facilitate [the child] spending time with her father pursuant to orders 5, 6 and 7 and the provisions of orders 5, 6 and 7 will operate as if those orders referred to that alternate contact centre.
The father’s evidence is at paragraphs 47 of his affidavit:
47.The Mother failed to provide the father with any dates by the 1/2/13 this year.
The mother did not concede that she breached the order.
On 30 January 2013[4] the mother sent the father an email providing dates for the father’s time with the child in New South Wales and Queensland. The email set out options for the father to choose for terms one and three in Cairns and terms two and four in Wollongong. The father responded to the email on 31 January 2013, to the effect that he could not access the content of the email. The mother conceded that she received that email. However, it is the mother’s evidence that she was able to ascertain that her email of 30 January 2013 had been opened by the father. As I understand her case, the mother did not believe that the father could not open the first email. Nevertheless, the mother sent further emails in similar terms on 22 February 2013 and 2 March 2013. The father denied receiving the email dated 22 February 2013. However, during February the father was advised by a contact centre of some of the dates nominated by the mother. The father sought to make the case that by using a particular email software or website the mother ensured that her emails could not be accessed by the father. The father was not able to make that case.
[4] Annexure 37 to the mother’s affidavit. The mother relied on her latest affidavit but on the annexures to various affidavits filed by her over time. The annexures are numbered sequentially and annexure 37 is annexed to the affidavit sworn 24 July 2013.
The order called for the mother to nominate dates. She sent an email to the father prior to 1 February 2013 containing the necessary information. The facts are suggestive but it falls to the father to establish the breach and in my view, he has failed to do so. There was no breach of the orders in respect of this allegation.
Allegation 9
The operative words are:
…. you failed to present [the child] to the [City 1] Contact Centre at 10.00am on 6 October 2012
I note that if the father’s first allegation was made out then this allegation would fail. If the mother had decided to permanently locate to Cairns in September 2012 and she was in fact already there on 6 October 2012 then presumably Order 11 was triggered and the contact needed to occur in Cairns. However, I have found that the father’s first allegation is not made out.
In respect of this allegation the mother conceded that she contravened the order. It falls to the mother to establish a reasonable excuse.
It is the mother’s evidence variously, that she did not know that she would not be returning to Western Australia in time for the father’s visit to the City 1 Contact Centre on 6 October 2012 and that she had a type of breakdown.
The mother has not established a reasonable excuse. Her evidence that she did not know she would not be in Western Australia in time to present the child at the City 1 Contact Centre on 6 October, is not credible. Travel from Far North Queensland to City 1 requires planning. At all relevant times the mother knew that she did not have a flight booked and other travel and accommodation arrangements in place that would allow her to facilitate the father’s time with the child. There is no suggestion that she made any such arrangements. As to her having a breakdown, there is no medical or other corroboration of the mother’s contention, let alone evidence sufficient to excuse the contravention. During cross-examination the father invited the mother to restore the evidence that had been struck from her affidavit on his own objection, being her assertion that she suffered from Post Traumatic Stress Disorder at an earlier time. Nevertheless this case was not made out.
Although it was not asserted to be the basis or a significant basis for contravening the order, the mother at times gave evidence suggesting that in August and for parts of September 2012 she had no funds. That was not the case. The mother would not concede the source of all of the funds but she was later obliged to concede that on 1 August 2012 she had $203,400 in her accounts and that at the end of that month she had $65,000. Those funds arose from a payment to the mother of $200,000 on 31 July 2012. Therefore the mother had access to funds throughout August 2012. The mother received another $90,000 in September 2012 and by late September she had something like $155,000. Her funds allowed the mother to contract in October to buy a property in Cairns for $160,000.
The mother bears the onus of establishing a reasonable excuse and she has failed to do so.
Allegation 10
The operative words are:
…. you failed to present [the child] to the [City 1] Contact Centre at 10.00am on 7 October 2012
This allegation relates to the second day of the father’s visits with the child at a contact centre in City 1 in early October 2012. As with allegation 9, the mother conceded that she contravened the order. Again it falls to her to make a case for a reasonable excuse. Again, the mother has not established a reasonable excuse.
Allegation 11
The operative words are:
… you failed to advise the father by 1 February 2013 of the periods when [the child] would be available to spend time with the father in [City 2]
This allegation is in similar terms to allegation 8. As with allegation 8, in my view the father has not established a breach of the orders. There is the additional problem of the allegation referring to City 2 and therefore the issues discussed earlier in these reasons in respect of allegations 7 and 13 also apply.
Allegations 16, 17, 18 and 19 are in effect, the same and will be dealt with together
Allegation 16
The operative words are:
…. you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of [the child’s] birthday
Allegation 17
The operative words are:
…. you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of Christmas
Allegation 18
The operative words are:
you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of Fathers Day
Allegation 19
The operative words are:
….. you failed to give the father a telephone number or Skype address for the purposes of compliance with that order in respect of the father’s birthday
The period affected by these allegations, which relate to required communication by telephone or Skype on 2 September 2012 (Father’s Day), … September 2012 (the father’s birthday), … November 2012 (the child’s birthday) and on 25 December 2012 (Christmas Day) was the period leading up to those dates. Order 12.3 of the orders required “the parties to communicate with each other in emails or text messages not less than four days before each of those days, to arrange the time for communication between [the child] and the father.”
The allegations relate only to the alleged failure to provide the necessary contact details and not to a failure to communicate within four days prior to each event.
The orders allow the option of communication by telephone or Skype. There is no doubt that the mother did not provide the father with a Skype address for any of those occasions. The mother was asked why she had not provided Mr W’s Skype address when asked and she said that the connection was used for his farming business.
As to the provision of a telephone number, it is common ground that the mother did not provide the father with a landline telephone number. However, it is the mother’s evidence that, at all relevant times, the father had her mobile telephone number. She deposed, and was not challenged in relation to her evidence that she gave the father her mobile phone number in September 2009, when they met.
In cross-examination the mother was asked if she had two mobile telephones while she was with Mr W and she denied that. She conceded that mobile reception at Mr W’s property was poor. It is common ground that the father sent the mother a SMS text message on 5 November 2012[5]. The message contained a reference to the father having received notice of the breakdown of the relationship between Mr W and the mother and making an offer of accommodation for the mother and the child at the father’s farm for a couple of months. It also included the words: “I am unsure if this is still your number. You may let me know.”
[5] Pages 34 and 35 of the annexure bundle to the mother’s affidavit sworn 24 July 2013
It follows that the father had the mother’s mobile telephone number in September 2012. There is no evidence that suggests that the mother changed her mobile telephone number between 5 November and 25 December 2012.
The evidence is typical of the lack of trust and poor communication between the parties. In this instance it is complicated by the restraint imposed on certain topics and styles of communication between them. In this case the father’s message, though apparently well meant, may have fallen foul of Order 13.
Albeit that he had the same obligation, it could be said that the mother should have communicated with the father in the four days before each of the special days identified in Order 12.3. However, that is not the breach alleged against the mother. The father has not made a case against the mother in respect of these allegations.
I have found that the mother contravened without reasonable excuse, orders made on 12 January 2012 as alleged in allegations 5, 9 and 10. In relation to those findings the proceedings will be restored to the list on a date convenient to the parties and the Court to consider any consequential orders.
Otherwise the father’s Application will be dismissed.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 December 2014.
Associate:
Date: 19 December 2014
0
1