DALLEY & DALLEY (No.3)
[2016] FCCA 959
•18 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALLEY & DALLEY (No.3) | [2016] FCCA 959 |
| Catchwords: PRACTICE AND PROCEDURE – Appointment of Independent Children’s Lawyer for the substantive parenting Application – where substantive application to be transferred to the docket of another Judge. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 68L, 70NAE, 70NAF, 70NEA |
| Cases cited: Dalley & Dalley [2015] FCCA 3459 Mackenzie & Gale [2015] FCCA 2755 In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92-396 Ramsay & Wade (No.2) [2014] FCCA 1989 |
| Applicant: | MR DALLEY |
| Respondent: | MS DALLEY |
| File Number: | SYC 4420 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 18 April 2016 |
| Date of Last Submission: | 18 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr McCann |
| Solicitors for the Applicant: | Anderson Lawyers |
| Counsel for the Respondent: | Mr Ryan (direct brief) |
ORDERS
The Respondent Mother has established a reasonable excuse for contravening on 25 December 2015 Orders 1 and 2 made by consent on 21 December 2015.
The Respondent Mother did on 10 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the children X born (omitted) 2003 and Y born (omitted) 2004 available to spend time with the Father in accordance with the Order.
The Respondent Mother did on 17 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the said children X and Y available to spend time with the Father in accordance with the Order.
The interests of the children X and Y are to be independently represented by a lawyer in accordance with section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney NSW 2000 for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and all other relevant documents.
The Independent Children’s Lawyer is given leave to issue up to ten (10) subpoenas without charge.
The Application is adjourned to Tuesday 17 May 2016 for further mention at 10:00 am.
IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4420 of 2011
| MR DALLEY |
Applicant
And
| MS DALLEY |
Respondent
REASONS FOR JUDGMENT
Application-Contravention
There are two contravention Applications before the Court. They each relate to allegations of contravention of Orders made by this Court on 21st December 2015. They are parenting orders in respect of the parties’ two younger children, X, who was born on (omitted) 2003 and Y, who was born on (omitted) 2004. There are separate Applications because, indeed, there are separate Orders which were made on 21st December and, indeed, the second Application relates to a contravention which had not taken place when the first Application was made.
The Orders concerned are, first of all, Orders made by consent on 21st December relating specifically to the children spending time with their father on Christmas Day. The second Application relates to Orders which were made that same day but after a short interim hearing[1]. The Consent Orders provided that the Father shall spend time with the children of the marriage, namely, X and Y on Christmas Day being 25th December 2015 from 11.30 am until 3:00pm. Order 2 made that same day provided that the Mother shall deliver and collect the children pursuant to order 1 above to the Father at (omitted) Railway Station, (omitted).
[1] Dalley & Dalley [2015] FCCA 3459
The orders made after an interim hearing provided at order 4 that the children X and Y are to spend time with the Father each Sunday from 9:00am till 5:00pm commencing on Sunday, 10th January 2016. The other Order claimed to have been contravened, Order 5, is a mechanical order relating to changeover. The parties were also directed to attend a Child Dispute Conference with a family consultant in accordance with section 11F of the Family Law Act 1975 (Cth) and that Child Dispute Conference took place on the afternoon of 14th April, which was last Thursday.
In each case, the Father has asserted that the Mother failed to make the children available to spend time with him in accordance with the orders. The Mother, through her Counsel, has admitted the contraventions but in each case said that she had a reasonable excuse for doing so.
The reasonable excuse which she has put to the Court goes back to the refusal of the children and particularly and the elder child, X, to attend to spend time with the Father as arranged and, indeed, the child, X, wrote a letter to the Father in no uncertain terms indicating her refusal to attend.
Reasonable Excuse for Contravention of a Parenting Order
The law relating to reasonable excuse is set out in section 70NAE of the Family Law Act 1975. In the recent decision of Mackenzie & Gale[2] I referred to an earlier decision of Ramsay & Wade (No.2)[3] in which I considered the relevant law at paragraphs [9] and [10] of that decision.
[2] [2015] FCCA 2755
[3] [2014] FCCA 1989
Section 70NAE of the Family Law Act provides a guide to the meaning of the phrase “reasonable excuse for contravening an order”. Subsections 70NAE(1) and 70NAE(5) are relevant to this matter and are reproduced in full. 70NAE(1) provides that:
The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
Subsection 70NAE(5) provides:
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 by 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).
There are, as it can be seen, two legs in subsection (5), both of which must be met.
In this case, it is the Respondent’s evidence that the children, particularly X, have expressed serious opposition to spending time with the Father. X, in fact, wrote a letter to that effect. The Mother gave evidence in cross-examination that she had, in the five years since the parties have been separated, encouraged the children to spend time with the Father although, as was submitted by Mr McCann for the Father, no specifics other than bland statements were made.
It is important to consider the fact that, where an order is in existence, there is an obligation on a party to encourage the children to go with the Father. This has been covered as long ago as in the decision of In the Marriage of O’Brien[4], which is a 1992 decision of Smithers J in the Family Court. It is not sufficient for a party to stand back and say “Well, you see, I tried, but the child just will not go with the father”. There is an obligation on the party to encourage the child to go. As Smithers J said in O’Brien:
Her obligation was to tell the child that she must go on access, and to encourage her to go.[5]
[4] (1992) 16 Fam LR 723; FLC 92-396
[5] (1992) 16 Fam LR 723 at 726
It must be said that there can be a fine line between encouraging a child to go and, if you like, putting up with the fact that a child just flatly refuses, and this is going to depend on the circumstances in each case.
Now, as I said, it is the person who claims to have a reasonable excuse for contravening a parenting order who has the burden of establishing the reasonable excuse, and this is set out in paragraph 70NEA(1)(c) of the Family Law Act. The standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities, set out in subsection 70NAF(2). The respondent must, under section 70NAE, establish both (a) a belief on reasonable grounds that not allowing the child and the father to spend time together was necessary to protect the child, or in this case the children’s, health and safety and (b) the period during which the children and their father did not spend time together was not longer than was necessary to protect the children’s health and safety.
Consideration
So what are the circumstances here? There are, as I said, two orders, both made on the same day, one an order made by consent relating to Christmas Day itself, the second made after submissions from the parties’ legal advisers in which the Court made orders providing for the children to spend time with their father on a Sunday commencing on 10 January. Mr Ryan of Counsel has pointed out that, in respect of the first contravention, the contravention of the Consent Order relating to Christmas Day, it was the mother herself who proposed in an email the terms of the consent order. Why, then, he submitted, would she in the few days prior to Christmas change her view?
It was submitted that, whilst the Mother had agreed and, in fact, proposed the Consent Order on 21st December, when she put this to the children the following day, the 22nd, they “rebelled”, to use the mother’s Counsel’s words, and, indeed, X wrote a very firm letter to her father saying she did not want to see him again and cited examples of what she said was aggressive behaviour towards another person.
In respect of the time to be spent with the Father under the second set of Orders, which commenced on 10th January, the Mother relies on the fact that she had already made it clear to the Father that the children would not be made available on 10th January or 17th January, which relates to the two contraventions set out in the Father’s second Application.
In each case, the Mother is relying on the same set of circumstances, the children’s expressed opposition. It is significant that the parties expressed their views to the family consultant at the Child Dispute Conference on 14th April. The family consultant has commented on the parties’ positions, noting that it may well be appropriate for the children’s interests to be independently represented by an Independent Children's Lawyer under the provisions of section 68L of the Family Law Act and suggesting that a child-inclusive conference with a family consultant may be of assistance if the matter goes to a final hearing, when a Family Report may well be ordered.
It is certainly the view of both parties’ legal advisers that an Independent Children's Lawyer should be appointed. The parties are not in accord that the children should attend a child-inclusive conference. Counsel for the Mother expressed reluctance to embroil the children in the maelstrom of family law from which they appear to have been kept at least on the sidelines up till now.
But, of course, when one looks at the Child Dispute Conference memorandum, it will be seen that what the family consultant has done is compare the parties’ accounts of the circumstances. In the final bullet point on the second page she begins her exposition of the mother’s point of view with the words:
If Ms Dalley’s account is accurate, it would seem that the children have had negative experiences whilst spending time with their father.
In the first bullet point on the next page, the family consultant says:
If Mr Dalley’s account is accurate, it would seem that the children have had positive experiences with him but they may have been negatively influenced against him by their mother and older siblings.
So in each case the family consultant is not expressing a view as to the correctness of either party’s accounts but setting out what would be the inference to be drawn if one or other account is found to be accurate. Of course, that may, indeed, necessarily involve having the evidence tested by cross-examination. Of course, that is one of the reasons why the family consultant has suggested the appointment of an independent children's lawyer and why she has suggested a child-inclusive child dispute conference, in other words, to obtain independent evidence as to the strength of the children’s position or not as to spending time with the Father.
What the Court has to look at, however, is whether the Mother has managed to establish both legs of the reasonable excuse as set out in section 70NAE. She must establish a belief on reasonable grounds that not allowing the children and their father to spend time together was necessary to protect their health and safety, but she must also establish that the period during which the children and their father did not spend time together was not longer than was necessary to protect their health and safety. Each of the contraventions for which a reasonable excuse has been claimed must be looked at in that light.
It is the Mother’s case that, yes, she consented on 21st December to an order that the children spend time with their father on Christmas Day four days later. But when she told the children on 22nd December they rebelled.
It is not surprising in the circumstances of the children’s opposition that the Mother saw herself as being in a position where not allowing the children to spend time with their father on Christmas Day was necessary to protect their health and safety. That is the view that she took in respect of the later matters on 10th and 17th January.
In my view, there was very little that the Mother could have done between 21st and 25th December other than to take the action that she did and not proceed with the action or the contact under the orders to which she had consented so recently. And in those circumstances, I am satisfied that in respect of the Christmas Day contravention that the Mother has established a reasonable excuse. A period of four days between the order being made and the contravention can hardly be described as being longer than was necessary to protect the children’s health and safety.
However, what the Mother then did was take that same view into the month of January; 10th January and 17th January. She then persisted with a unilateral suspension of the orders that had been made after a hearing on 21st December. She did not and has not brought an application to vary or set aside those orders. She has persisted with a unilateral contravention of the order, relying on that same set of circumstances.
In my view, that cannot be regarded, on the facts, as the period during which the children and their father did not spend time together was not longer than was necessary to protect the children’s health and safety. What the Mother should have done was to apply to vary the orders or suspend the orders, based on what she saw as the children’s implacable and perhaps intractable opposition based on expressed fear, as set out in the letter written by X.
The Father has also made the point that there is very little by way of evidence in respect of the reluctance of Y. However, it is certainly the Mother’s position that Y has expressed a similar view.
Conclusions
This means that the Court will find that the Mother has established a reasonable excuse for the contravention on 25th December. The Court will find, however, that in respect of the matters on 10th and 17th January the Mother contravened the orders without a reasonable excuse.
The Court must then look at what consequential orders should be made. It has not been put to me, and it would be very difficult to put in respect of the short period of time in which the orders were in existence before they were contravened, that the Mother had previously been found to have contravened the primary order.
The matters before the Court represent first contraventions. This means that the powers that the court exercises should be under subdivision E of Division 13A, and not under subdivision F. Subdivision E comes under the heading Contravention without reasonable excuse (less serious contravention), whereas Subdivision F comes under the heading Contravention without reasonable excuse (more serious contravention).
It is open to the Court, of course, on a less serious contravention, or on a contravention where there has been no prior finding, that the circumstances were so serious that they represent a serious disregard for the parties’ obligations under the order. This is not such a case. In my view, the Court must look at the orders available under Subdivision E, which are to be found in section 70NEB of the Act.
There is a variety of sanctions available under s.70NEB, including ordering the person who committed the contravention to attend a post-separation parenting program, or to make a further parenting order that compensates the person for the time the person did not spend with the child, or adjourning the proceedings to allow either or both of the parties to apply for a further parenting order that discharges, varies or suspends the primary order, or revives some or all of an earlier parenting order; or requiring the person who committed the current contravention to enter into a bond; or to impose a fine. The Court also has the power to make an order for costs.
I have considered what may be appropriate orders to be made in respect of the contraventions. I am mindful of the fact that there are ongoing substantive parenting proceedings.
In my view, it is appropriate to make an order that the children’s interests should be independently represented by a lawyer. It will take, as it usually takes, about three to four weeks for an Independent Children’s Lawyer to be able to receive the information, speak to the children, obtain their views and be in a position to make a submission to the court.
It seems to me that this could be done by Tuesday, 17th May. And what I would wish to do on Tuesday, 17th May is to hear submissions on behalf of the Applicant and the Respondent and from the Independent Children’s Lawyer as to what would be the appropriate orders to be made in respect of the two contraventions that have been found.
The other thing that will happen on that day after I have finished with the contraventions is that the substantive matters will be adjourned to one of my colleagues, namely, her Honour Judge Boyle. The reason for this is that I have run out of hearing dates in my judicial lifetime. Her Honour who was recently appointed has hearing dates available, and, consequently, the matter can be allocated to her so that she may steps to get the matter ready for a final hearing.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 18 April 2016
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