Corbin & Corbin
[2023] FedCFamC2F 1268
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Corbin & Corbin [2023] FedCFamC2F 1268
File number(s): CAC 2582 of 2018 Judgment of: JUDGE GLASS Date of judgment: 9 October 2023 Catchwords: FAMILY LAW – CONTRAVENTION – where mother has contravened orders for children to spend time with father on seven occasions without reasonable excuse – where mother has contravened orders for the children to communicate with father on three occasions without reasonable excuse – makeup time - where bond without security or surety is appropriate Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA, 70NEB Cases cited: Gaunt & Gaunt (1978) FLC 90-468
Hunter & Morrison [2014] FamCA 198
Manolis & Manolis [2022] FedCFamC1F 443
McClintock & Levier (2009) FLC 93-401
TVT & TLM [2006] FMCAfam 20
Winch & Jackson (2015) FLC 93-649
Division: Division 2 Family Law Number of paragraphs: 88 Date of last submissions: 27 September 2023 Date of hearing: 1 June 2023, 27 September 2023 Place: Melbourne Counsel for the Applicant: Ms Davis on 1 June 2023, Mr Harper on 27 September 2023 Solicitor for the Applicant: [Foster Johnson Family and Collaborative Lawyers Counsel for the Respondent: Ms Skinner Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
CAC 2582 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CORBIN
Applicant
AND: MS CORBIN
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
9 OCTOBER 2023
UPON THE COURT FINDING THAT:
A.Ms Corbin has contravened parenting Orders made 25 August 2020 without reasonable excuse on ten occasions in October and November 2022.
THE COURT ORDERS THAT:
1.Ms Corbin enter into a bond without surety or security to comply with extant parenting Orders for a period of 12 months.
2.The children, X, Y and Z spend additional time with the Father by way of makeup time as follows:
(a)3 overnights immediately preceding the time the children are to spend with him in week 2 of the 2023/2024 Christmas holidays;
(b)3 overnights immediately following the time the children are to spend with him in week 6 of the 2023/2024 Christmas holidays;
(c)3 overnights immediately preceding the time the children are to spend with him in 2024 Term 1 school holidays;
(d)3 overnights immediately preceding the time the children are to spend with him in 2024 Term 2 school holidays; and
(e)From 6:00pm on 28 September 2024 until 6:00pm on 1 October 2024.
3.Unless otherwise agreed, changeovers at the start of the additional time in Orders 2(a), 2(c) and 2(d) occur at 6:00pm, and changeover at the conclusion of the additional time in Order 2(b) occur at 6:00pm.
4.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
By Application filed on 6 December 2022, Mr Corbin alleges that Ms Corbin has, on ten occasions, contravened the parenting Orders made 25 August 2020 in relation to the parties’ three children, X, Y and Z, now aged 12, 10 and 7 years respectively.
Ms Corbin denies one of the allegations and admits the others. She asserts she had a reasonable excuse for the nine admitted contraventions.
The application falls to be determined pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth).
It is common ground that in the event I find Ms Corbin not to have a reasonable excuse for contravening the Orders, Subdivision E of Division 13A of Part VII of the Act is applicable. The applicable standard of proof is on the balance of probabilities.[1]
[1] Family Law Act 1975 (Cth) ss 70NAF(1).
Pursuant to section 70NAC of the Act, Ms Corbin is relevantly taken to have contravened an order if, and only if, she has intentionally failed to comply with the order or made no reasonable attempt to do so. Section 70NAE of the Act prescribes a non-exhaustive definition of reasonable excuse.
SPEND TIME
The Orders provide for the children to live with Ms Corbin and spend time with Mr Corbin. By counts 1, 2, 4, 6, 8, 9 and 10, contraventions are alleged by Mr Corbin of the Orders providing for the children’s time with him.
With respect to each of the counts, Ms Corbin asserts she had a reasonable excuse as defined by subsection 70NAE(5) of the Act. That subsection is in the following terms:
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).
Ms Corbin bears the onus of establishing a reasonable excuse on the balance of probabilities.[2]
[2] Manolis & Manolis [2022] FedCFamC1F 443 (“Manolis”) at [19].
As Mr Corbin submits, there are three elements that Ms Corbin must satisfy to establish a reasonable excuse for the contravention:
·She has to believe that what she was doing was necessary to protect the health or safety of a person (a subjective element);
·There must be reasonable grounds for the belief (an objective element); and
·The duration of the contravention was for no longer than necessary.
The purpose and intentions of the Act are undermined where a party is allowed to “arrogate for himself a supervening power to make an independent decision” on the issue of children’s best interests once that issue has been the subject of curial determination.[3] Significantly in the context of this application, Ms Corbin was advised prior to the alleged contraventions to commence proceedings to vary the Orders, which step she failed to take.
[3] Gaunt & Gaunt (1978) FLC 90-468 at 77,398; quoted in Hunter & Morrison [2014] FamCA 198 at [56].
Ms Corbin submits that “at the time she was protecting [the children] and withholding them, she didn’t see that it was in their best interests to have any time with the father at that point because she wanted to protect them”. The submission is suggestive of Ms Corbin taking it upon herself to make an independent decision about the children’s best interests rather than make application to vary the obligations imposed by the Orders.
Count 1
Mr Corbin alleges that Ms Corbin contravened Orders providing for the children to spend time with him on 1 October 2022, or thereafter negotiating make-up time for the children.
Ms Corbin admits the contravention, but asserts she had a reasonable excuse for doing so.
Ms Corbin relies primarily on the fact that the children were interviewed by Police in late 2022 and made complaints about their father’s conduct towards them. She gives the following evidence of events immediately preceding those interviews:
[In late] 2022 [Z] disclosed to me that "I accidentally stepped on dad's foot" and "dad got angry and hit me across the head' and "he shoved me into the wall”. [Z] complained of having a "sore head”. [Y] confirmed [Z]'s version of events, saying "Dad was angry because [Z] stood on his foot. Dad's face went red, he yelled and swore and hit [Z]'s head and [Z]'s head went into the wall."
[In late] 2022, [Ms B] spoke to me about [Z]'s disclosure and told me "[Z]'s told me [Mr Corbin] struck him, have you heard about this?" I said, "Yes." I then explained to [Ms B] what [Z] had said to me. [Ms B] is a [community worker]. She said "I'm going to make a report to […]".[4]
[4] Affidavit of Ms Corbin filed 1 June 2023, paragraphs 42 to 43.
Ms B is an adult daughter of Ms Corbin.
As submitted by Mr Corbin, Ms Corbin’s subsequent evidence suffers from some significant deficiencies. Rather than report what she was told, by whom, and at what time, she simply quotes extracts of material from third parties. She does not depose to when she was provided with that material. These are significant omissions in circumstances where she bears the onus of establishing not only the nature of her belief at a particular point in time, but also whether it had a reasonable basis.
Ms Corbin submits that:
… going back to the mother’s state of mind or her reasonableness at the time that this occurred, all she knew was that the children made these disclosures to her and then to police, and then she received a Caution or a copy of the Caution where there’s an unspecified – sorry, an admission to clipping [Z] over the head on an unspecified date.
The submission is not supported by the evidence. The caution is dated 9 September 2022. There is no evidence of when Ms Corbin received it. To the extent she also relies on notes from City C Policing, the notes annexed to her affidavit were printed on 17 February 2023 and so could not have informed her beliefs in October 2022.
Ms Corbin submits that from her perspective, the late 2022 disclosures were “a crescendo” of other allegations she makes of Mr Corbin behaving inappropriately. The difficulty with the submission is that she gives no evidence of how those prior incidents or allegations affected her beliefs at the time of the admitted contraventions. Indeed, she gives no clear evidence of the nature of her beliefs at the relevant time.
The deficiencies in Ms Corbin’s evidence are not cured by her conclusory evidence that, “I say that I had a reasonable excuse to contravene the 2020 Orders and that these contraventions were necessary to protect the health and safety of the children due to the allegations they made of physical and emotional abuse by [Mr Corbin].”[5] The necessary subjective element to the defence is not established.
[5] Affidavit of Ms Corbin filed 1 June 2023, paragraph 83.
What the evidence demonstrates is that City C Police, Child Protection and the children’s medical practitioners were all aware of the disclosures made by the children. In the case of City C Police, they had been investigated to the point of Mr Corbin being formally cautioned. The children’s general practitioner had certified the children medically unfit for a period of time in September 2022. None of the relevant authorities or professionals had recommended that the children not spend time with their father on 1 October 2022. The necessary objective element to the defence is also not established.
I accept the admission by Mr Corbin contained in his Police Caution dated September 2022 that an assault had occurred, gave Ms Corbin immediate cause to suspend the children’s time with him, as she did. She appropriately obtained medical advice to that effect. However, by October 2022, she was no longer in receipt of any such medical advice. There is no evidence of any efforts she made to obtain further medical advice prior to withholding the children from their father on that occasion. The absence of any such advice is significant in light of paragraph 15 of the Orders which requires her to provide a particularised medical certificate in the event the children do not attend a period of time with their father because they are unwell.
To the extent Ms Corbin relies on the legal advice she obtained on 27 September 2022, I am not satisfied it provides a reasonable basis for any belief she held that suspending time was necessary to protect the health or safety of a person in circumstances where she adhered to only one part of the advice. As has been observed, she failed to apply to vary the Orders.
Ms Corbin has not established a reasonable excuse for the contravention.
Count 1 is established without reasonable excuse.
Count 2
Mr Corbin alleges that Ms Corbin contravened Orders providing for her to encourage the children to spend time with him on 2 October 2022.
Ms Corbin admits the contravention, but asserts she had a reasonable excuse for doing so.
She made no specific submissions referrable to this Count, appearing to rely on the submissions made with respect to Count 1. For the reasons already given, Ms Corbin has not established that she had a reasonable excuse for the admitted contravention.
Count 2 is established without reasonable excuse.
Count 4
Mr Corbin alleges that Ms Corbin contravened Orders providing for Y and Z to spend time with him on 14 October 2022, or thereafter negotiating make-up time for the children.
Ms Corbin admits the contravention, but asserts she had a reasonable excuse for doing so.
To the extent she also relies on the submissions made in relation to Count 1, they are rejected for the reasons previously given.
Mr Corbin gives the following evidence:
On 14 October 2022, the children were due to spend three nights with me from after school pursuant to Order 5.4.1 of the Orders. At 2:11 pm I received a message from [Ms Corbin] stating:
"[X], [Y] and [Z] have chosen not to attend your house this weekend. As a first step at reconciliation how about we trial Wednesday after school until Thursday before school this week as a one night starting point. I will attach a medical certificate for this weekend".
At this time, [X] was aged 11, [Y] was aged 10 and [Z] was aged 7. It is my view that they were and are too young to decide whether or not to see me.
At 4:20pm, [Ms Corbin] sent a medical certificate on Talking Parents for [X] only (not [Y] and [Z]), in the same terms as the previous certificates, covering the period 14 October 2022 until 17 October 2022. She did not make the children available to spend time with me that weekend. I did not receive any contact from [Ms Corbin] regarding make-up time.
I called [Dr D] that evening to ask why a medical certificate had been issued. [Dr D] said "All three children presented for an appointment with [Ms Corbin] today. [X] presented with anxiety and said she didn't want to go, so I signed a medical certificate for her. The boys did not say that they didn't want to go, so I did not provide a medical certificate for them". He also said "[Ms Corbin] said that you didn't come to handover on 1 October 2022 which is why they didn't spend time with you on the holidays and that this caused the children anxiety". As outlined above, this is untrue and was very upsetting to me. I said to [Dr D] "This is the fourth time you have provided a medical certificate for anxiety and depression with no referral for professional services. Please can a referral be made.”[6] (emphasis added)
[6] Affidavit of Mr Corbin filed 26 May 2023, paragraphs 42 to 44.
Again, Ms Corbin gives no evidence of the belief she held at the time she contravened the Orders. Any belief that contravening the Orders was necessary to protect the health or safety of the children is inconsistent with the message Ms Corbin sent to Mr Corbin citing the children’s choice as the reason for the contravention. Ms Corbin has not established the subjective element of the defence.
Even were I satisfied of the subjective element of the defence, I am not satisfied that the objective element is established in relation to X. To the extent reliance is placed on the advice of the General Practitioner, the relevant medical certificate was not in evidence.
Count 4 is established without reasonable excuse.
Counts 6, 8 and 10
Mr Corbin alleges that Ms Corbin contravened Orders providing for X to spend time with him on 28 October 2022, 2 November 2022, and 16 November 2022, or thereafter negotiating make-up time.
Ms Corbin admits the three contraventions, but asserts she had a reasonable excuse for doing so.
Ms Corbin submits that X has been “consistent from the outset, or shortly after the incident [in late] 2022, that she did not wish to see her father”, and that “she expressed a clear wish to no longer see the father”. However, as she ultimately conceded, an expression of even strongly held views, does not establish reasonable grounds for a belief that it is necessary to protect the health or safety of a person by contravening Orders.
Ms Corbin relies on her evidence as follows:
[X], however, has refused to and has not spent any time with [Mr Corbin] since [late] 2022. I have formed the view that [X]'s behaviour and her response when I have forced her to see her father was so distressing to [X] that it put [X]'s psychological well-being at risk. When I tell [X] that she needs to spend time with her father, she becomes hysterical, cries, and insists that she is not feeling well. [X] is well aware of the dates that she is schedule to spend with [Mr Corbin] and refuses to go to school on changeover dates. She does this by hiding at home, saying she 's unwell, and refusing to get into the car to go to school. To get [X] to go see her father I have to physically carry and drag her to [Mr Corbin]. I have done this to [X] in the past when she was younger. [X] was 7 to 9 years old during the previous proceedings, during which, to facilitate changeovers, I had to carry her, put her into the car and lock her in the car to drive her to see her father. Even with this routine, I could not always get [X] to see her father and to avoid missing changeover times completely often left with just [Y] and [Z] and brought them to see their father. Now that [X] is 12 years old and much bigger, I can no longer use physical force to bring [X] to school or changeovers against her wishes. [X] is now 150cm tall and approximately 45kg and I can no longer physically pick her up and carry her to the car.[7]
[7] Affidavit of Ms Corbin filed 1 June 2023, paragraph 56.
The view Ms Corbin therein deposes to forming is that X’s behaviour and response when forced to see her father was so distressing to X that her psychological well-being is put at risk. There are no reasonable grounds for that belief. As Ms Corbin conceded in her submissions, there is no medical evidence to support it.
Ms Corbin relied on doctor’s notes for all three children dated October 2022 in the following terms:
Psychological pathology - counselling
nil harm potential - exclusion of emergency
referral
nil psychotic features
counselling
counsellor referral
consider trial of stay with father – then call
for collection if intolerance[8]
[8] Affidavit of Ms Corbin filed 1 June 2023, annexure C-9, page 126.
Nothing in those notes supports the conclusion that it was necessary to protect X’s health or safety to contravene the Orders. Whatever the meaning of the penultimate lines specifically relied on by Ms Corbin, they are preceded by what appears to be a conclusive statement of “nil harm potential”.
Ms Corbin also sought to rely on a memorandum from a clinical psychologist dated 12 September 2023 that said, “After meeting with [X], I could see no point in proceeding with joint counselling with her father.”[9] That statement also provides no support for any belief that it was necessary to protect X’s psychological health by contravening the Orders nearly twelve months prior.
[9] Exhibit R3.
Ms Corbin’s submission that she would “need to cause some level of psychological harm to the child to force her to go” is also not established by the evidence. There is no evidence of X’s behaviour on or around the time of any of the contraventions. Ms Corbin conceded that she never took X by the hand and took her to her father.
Further, in admitting the contraventions alleged in relation to X, Ms Corbin is conceding that she either intentionally failed, or made no reasonable attempt, to comply with the Order for X to spend time with her father.[10] To the extent Ms Corbin’s evidence suggests (and it is far from clear that it does) that she made attempts to comply with the Orders at the time of the contraventions, it is inconsistent with her plea.
[10] Family Law Act 1975 (Cth) s 70NAC.
The evidence does not satisfy me that Ms Corbin had a belief on reasonable grounds that it was necessary to protect X’s health or safety to contravene the Orders for her to spend time with her father.
Counts 6, 8 and 10 are established without reasonable excuse.
Count 9
Mr Corbin alleges Ms Corbin contravened Orders providing for X and Y to spend time with him on 11 November 2022, or thereafter negotiating make-up time.
Ms Corbin admits the contravention, but asserts she had a reasonable excuse for doing so.
Ms Corbin makes no specific submissions with respect to this count concerning X, relying on her submissions and the evidence in support that has been addressed in the previous counts. For the reasons already given, I am not satisfied she had a reasonable excuse for contravening the Order on 11 November 2022 with respect to X.
With respect to Y, she submits that she had a reasonable excuse arising from her evidence as follows:
There was an occasion [in] November 2022 where [Y] was dysregulated, so I did not provide [Y] on that date. On that day, [Y] was so stressed that he experienced an "autistic shutdown". He wrapped himself in his blanket and cuddled his dogs. [Y] was unresponsive and I could not get through to him at this point.[11]
[11] Affidavit of Ms Corbin filed 1 June 2023, paragraph 53.
She also deposes as follows:
… [Y] was particularly dysregulated [in] November 2022. This dysregulation was evidenced by [Y] shutting down and wrapping himself around the dog, curled up in a ball and unable to process any communication from me.[12]
[12] Affidavit of Ms Corbin filed 1 June 2023, paragraph 99.
Mr Corbin gives unchallenged and uncontradicted evidence that he received a message purportedly from Y that day:
I collected [Z] from school and started heading to [the] shops to collect [Y]. Before leaving the school carpark I received a message from [Ms Corbin’s] Whatsapp at 3:19pm saying "I will not be attending you for the weekend. [Y] ".[13]
[13] Affidavit of Mr Corbin filed 26 May 2023, paragraph 70.
If Y wrote the message using Ms Corbin’s messaging service, it contradicts Ms Corbin’s evidence that Y was unresponsive on that occasion.
Ms Corbin submits that she “made the decision that it wasn’t in his – consistent with his wellbeing to make him available while he was in that state.” She also submits that it is to be “inferred that while he was in that state”, he was “unresponsive”, and she felt that “she couldn’t move him”. She further submits that “there is a reasonable excuse there because she was dealing with a child who was in that state, and she made a decision on a reasonable basis that that change would have caused him psychological harm.”
Ms Corbin’s submissions are not supported by the evidence. Contrary to the submission that she could not move Y, Mr Corbin gives unchallenged and uncontradicted evidence that Y was in the car with Ms Corbin at school.
Ms Corbin also gives no evidence of why her decision not to provide Y, was at a time when she believed it was necessary to do so, to protect his health or safety. She gives no evidence of the duration of what she describes as a shutdown, nor the duration of his lack of responsiveness.
Ms Corbin has not discharged her onus to establish both the subjective and objective elements of the defence.
Count 9 is established without reasonable excuse.
COMMUNICATION
Paragraph 5.5 of the Orders provides for the children to have audio-visual contact with Mr Corbin once per week at times to be agreed and failing agreement, at 6:45pm for no more than half an hour on Mondays and once per fortnight at 6:45pm for no more than half an hour on the Wednesday preceding his weekend with the children.
Count 5
Mr Corbin alleges that Ms Corbin failed to facilitate X and Y having audio-visual contact with him on 17 October 2022. Ms Corbin denies the allegation.
Mr Corbin deposes that he called the children via Whatsapp at 6:45pm, and that Z answered the phone. He deposes that Ms Corbin was behind the phone throughout the call. He also deposes that he asked to speak to Y and X, to which Z responded that “they don’t talk anymore I’m the only one that talks”.[14] His evidence was unchallenged and I accept it.
[14] Affidavit of Mr Corbin filed 26 May 2023, paragraph 46.
Ms Corbin gives the following evidence:
Generally, I facilitate audio-visual contact between the children and [Mr Corbin] by giving one of the children my mobile phone during a WhatsApp call from [Mr Corbin]. The other children are also at home during these calls.
On 17 October 2022 at 6 :45pm, I facilitated an audio-visual call between the children and [Mr Corbin] via my WhatsApp account. I gave the phone to [Z] on this occasion and he had a call with [X]. [X] and [Y] were also home but declined to speak to [Mr Corbin] that day.
I say it is not reasonable for [Mr Corbin] to expect that all three children are present for every single audio-visual call between him and the children, which occur once per week. During the calls it is very difficult to get all three of them to engage at the same time, so I usually ask that one child holds the phone (or has it in front of them) and talks to their father. The children then take it in turns between them in accordance with their wishes. If one child wants to spend the entire time talking to [Mr Corbin] and this is ok with the other children, I do not take the phone away from that child and force the other two to speak to [Mr Corbin] instead.[15] (emphasis added)
[15] Affidavit of Ms Corbin filed 1 June 2023, paragraphs 90 to 92.
Ms Corbin gave oral evidence that she did not specifically recall the occasion of 17 October 2022. She went on to give the following evidence in cross-examination:
COUNSEL FOR [MR CORBIN]: You don’t tell us what you said to [X] and [Y] that day. Do you remember?
[MR CORBIN]: Not specifically on that occasion, but I know that I regularly prepare them before the phone call is about to start and let them know that it’s almost time to speak to dad, you know, “Five minutes to go. Finish up what you’re doing. Come and get ready. Dad is now on the phone. Dad is talking to [Z]. Come and join the phone call” – that sort of thing.
COUNSEL FOR [MR CORBIN]: Yes, yes, so you think, in general, that’s probably what happened on that occasion, but you’re not sure?
[MR CORBIN]: Yes, that’s – yes.
COUNSEL FOR [MR CORBIN]: Okay. So you have no recollection of saying to them, “Come and talk to your dad”?
[MR CORBIN]: Not – I don’t remember that day specifically, but I know that that is what I always say to them.
COUNSEL FOR [MR CORBIN]: Yes. So, certainly with [Y], if you look back at that time, you could have convinced him to come and talk to his dad, couldn’t you?
[MR CORBIN]: That’s really variable, as my son has autism spectrum disorder and he has really good days and he has not so good days.
COUNSEL FOR [MR CORBIN]: And [X] – once again, you have no recollection of that particular date?
[MR CORBIN]: Not that specific date, no.
Ms Corbin submits that she “did all things she reasonably could to ensure the children were available to speak with the father”. I reject the submission. She gives no evidence of the particular steps she took to facilitate X and Y communicating with their father. Even if she had said to the other children on that occasion words to the effect “come and join the phone call”, it would amount to no more than “mere request that the child telephone, or come to the telephone” which has been held to be insufficient.[16] Contrary to her submission, Ms Corbin has not discharged her obligations under the Orders.
[16] Manolis at [8] quoting TVT & TLM [2006] FMCAfam 20 at [33(d)].
I am satisfied that Ms Corbin made no reasonable attempt to comply with the Order for X and Y to communicate with their father on 17 October 2022.
Ms Corbin did not suggest she had a reasonable excuse for contravening the Order on that occasion.
Count 5 is established without reasonable excuse.
Counts 3 and 7
Mr Corbin alleges that Ms Corbin failed to facilitate all three children having audio-visual contact with him on 10 and 31 October 2022.
Ms Corbin admits the allegations, but asserts she had a reasonable excuse for doing so.
She claims the reasonable excuse is established because, or substantially because, she did not understand the obligations imposed by the Order and I should be satisfied that she ought be excused in respect of the contravention.[17] That contention is inconsistent with the evidence.
[17] Family Law Act 1975 (Cth) ss 70NAE(2).
In relation to Count 3, Ms Corbin deposes as follows:
I do not recall exactly what happened [in] October 2022 but recall that it was on the children’s first day back at school, [Mr Corbin] called twice, and I spent a long period of time after [Mr Corbin]’s first call telling the children to pick up the phone and speak to their father. I put the phone in front of them and said "It's dad on the phone. Please answer". They refused. I note that this was about 2 weeks after [Mr Corbin]’s assault of [Z].
I say it is not possible to force the children to engage in the audio-visual calls if they refuse to talk to [Mr Corbin]. Even if I pick up the call and place the phone in front of the children, if they do not want to speak to [Mr Corbin] they would refuse to talk, hang up the phone or leave the room.
I note [Mr Corbin] deposes at paragraph 14 of his affidavit he has missed 130 of 160 audio-visual calls with the children. I deny that figure and say that I have encouraged the children to participate in all of the calls pursuant to the orders and that the children have participated in the majority of those calls. I say that there were less than 10 calls which all of the children missed.[18]
[18] Affidavit of Ms Corbin filed 1 June 2023, paragraphs 86 to 87.
In relation to Count 7, Ms Corbin deposes as follows:
I do not recall exactly what happened [in] October 2022 but recalled that [Mr Corbin] called twice and I was not successful in convincing any of the children in picking up the phone.[19]
[19] Affidavit of Ms Corbin filed 1 June 2023, paragraph 95.
Ms Corbin gave oral evidence that she understood it was her responsibility to encourage the children to speak to their father. I am satisfied that she understood the obligations imposed on her by the Order.
Ms Corbin’s contention appears to be based on her evidence that she did not understand it was her responsibility to answer the phone until obtaining subsequent legal advice. The Order did not require her to answer the phone. I am not satisfied the change in her understanding establishes that she did not understand the obligations imposed by the Order at the time of the admitted contraventions.
Ms Corbin has not established a reasonable excuse for the contraventions.
Counts 3 and 7 are established without reasonable excuse.
RELIEF SOUGHT
Mr Corbin proposes that Ms Corbin enter into a bond for a period of twenty-four months. Ms Corbin principally submitted that no order ought be made, and alternatively proposed a twelve month adjournment of the proceedings to enable her to make an application for further parenting orders.[20]
[20] Family Law Act 1975 (Cth) ss 70NEB(1)(c).
In exercising my discretion to grant relief pursuant to section 70NEB of the Act, my focus must be on making orders which will enforce future compliance with the Court’s Orders.[21]
[21] McClintock & Levier (2009) FLC 93-401 at [233]
Ms Corbin relies on the context of the children’s disclosures, the Police caution, her ongoing success in having Y and Z spend time with their father, and the attempts made at family therapy in mitigation. I do not accept that making no orders other than for makeup time will meet the objective of enforcing future compliance with orders.
Ms Corbin was advised twelve months ago to make an application for further parenting orders but has not done so. Whilst she now proffered an undertaking through her counsel to do so, I am not satisfied that the mere adjournment of the proceedings for a further twelve months is a consequence that appropriately enforces future compliance with orders.
Ms Corbin opposes both the bond and makeup time for X on the grounds that it “just won’t be possible” and she will not be able to comply with the Orders. The submission is not established on the evidence. Ms Corbin admits that she has either intentionally failed, or made no reasonable attempt, to comply with the Orders for X to spend time with her father. She has not established a reasonable excuse for those failures. I accordingly consider it appropriate for orders to be made for makeup time for X also.
Ms Corbin accurately submits that the risk of the bond not being complied with is that she may again be dealt with by the Court. Whether she again contravenes orders without reasonable excuse will then be a matter to be determined. However, a contravention will only be established if she makes no reasonable attempt to comply with Court orders.
Ms Corbin contends that a bond is too severe an outcome. It is not sought with any surety or security. In light of Ms Corbin’s contraventions, which I have found to have been without reasonable excuse, I do consider that a bond is an appropriate remedy.
I am nevertheless not satisfied that the duration of the bond proposed by Mr Corbin is appropriate in all the circumstances. I do not conclude that the contraventions are at the “upper range of less serious contraventions”.[22] I do consider a reasonably significant duration of bond is warranted given it is common ground that X continues not to spend time with her father. For those reasons, I consider a bond of twelve months to be appropriate in all the circumstances.
[22] Winch & Jackson (2015) FLC 93-649 at [52].
The schedule of makeup time was agreed between the parties at the conclusion of the hearing. I have specified the hours of changeover during the final period of agreed make up time consistently with the agreed changeover times for other periods of makeup time.
Although both parties’ filed material made proposals for the variation of the primary orders,[23] that relief was not pressed by either party. Ms Corbin confirmed she only made that proposal in the event she is found to have had a reasonable excuse. Mr Corbin abandoned his proposals to vary the Orders in closing address.
[23] Family Law Act 1975 (Cth) s 70NBA.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 9 October 2023
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