Davis and Hadlow

[2019] FamCA 282

FAMILY COURT OF AUSTRALIA

DAVIS & HADLOW [2019] FamCA 282

FAMILY LAW – ORDERS – Contravention – Where the mother asserts the father has contravened orders by failing to complete the enrolment process at a Children’s Contact Service as ordered – Where the father does not admit the contravention – Where the father understood the obligation and had commenced the process of enrolment – Where the father did not complete the last step of the enrolment process due to a clash with his personal commitments – Contravention proved.

Family Law Act 1975 (Cth) div13A pt VII, ss 70NAC, 70NAE, 70NAF
Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Ms Davis

RESPONDENT: Mr Hadlow

FILE NUMBER: ADC 3076 of 2017

DATE DELIVERED: 2 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Andersons Solicitors

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Janson Lawyers

UPON NOTING that Count 1 of the Application for Contravention filed 12 February 2019 is proven

Orders

1. That the Application for Contravention is set down for the sentencing of the father on 7 May 2019 at 9.15 am.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3076 of 2017

Ms Davis

Applicant

And

Mr Hadlow

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 12 February 2019, Ms Davis (“the mother”) filed an Application for Contravention of orders made 6 March 2018 (“the application”).

2. Mr Hadlow (“the father”) is the respondent to the proceedings.

3. When first filed, the mother alleged four counts of breaches of the parenting order pertaining to Z born in 2016 (“the child”).

4. The mother alleges that the father failed to comply with the orders made on 6 March 2018 and that he did so without reasonable excuse.

5. The application was supported by the mother’s Affidavit filed 12 February 2019. Whilst not obliged to do so, the father elected to file an Affidavit on 12 April 2019.

Background

1. The father is 42 years and the mother 35 years of age.

2. The parties met in 2014.

3. The parties commenced a relationship in early 2015 until June 2017 when the parties ceased spending time together.

4. In addition to the subject child, Y born in 2013 is the mother’s child from a previous relationship. Consent orders dated 25 July 2014 provide that the mother has sole parental responsibility for Y, that he lives with her and spends time with his father.

5. The father has four children from a previous relationship namely K aged 14 years, J aged 12 years, V aged 8 years and W aged 5 years. The children live with their mother Ms B and spend time with the father pursuant to a consent order made 18 August 2015.

6. The father’s children with Ms B spend significant and substantial time with him.

7. Neither party has re-partnered.

8. The mother is a professional and undertakes work as a self-employed consultant. The father undertakes building services work and is also involved in sports.

9. The parties are generally in reasonable health, but each have sought therapeutic assistance.

10. The mother alleges that in May 2016 there was a change in the father’s relationship with Y.

11. In January 2017 the mother alleges that Y told her that the father had “touched my peewee”.

12. There were further allegations made by Y to the mother and as a result the mother did not allow the father to return to her home.

13. The mother moved with the children to State M in 2017.

14. The father commenced the proceedings on 28 July 2017. On 21 September 2017 the parties agreed that the father would spend time with the child each day for a period of two hours from 23 September 2017 to 26 September 2017, with one of the maternal grandparents supervising the father’s time.

15. On 26 September 2017 orders were made that required the mother to return the child to the metropolitan area of Adelaide and to spend two occasions per week for two hours with the father.

16. The order did not provide a set time for the handovers, nor the place of handover.

17. The mother returned to South Australia on 25 October 2017. The mother had planned for Y to remain in State M with the maternal grandmother.

18. Following orders made 24 November 2017 which provided for the child to spend time with the father each Wednesday between 4.30 pm and 6.30 pm and each Sunday between 9.30 am and 11.30 am, the mother decided to relocate Y back to South Australia.

19. On 6 March 2018 orders were made in the following terms:-

    UPON NOTING the order contained in paragraph 3 of the Order made on 24 November 2017 continues pending further Order save and except for the Contact Centre handover service referred to in this Order,

    THE COURT ORDERS THAT:

    1.Pending further Order, the father spend time with the child Z born in 2016 as follows:

    a.Each Tuesday from 2:15pm until 5:15pm;

    b.Each Sunday from 9:30am until 12:30pm; and

    c.On 12 April from 9:30am until 12:30pm.

    2.The parties forthwith enrol in the K Children’s Contact Service for the purposes of handover.

    3.Upon acceptance into the Children’s Contact Service, the father’s time will be from 9:00am until 12:30pm on Saturday with handover to occur at the handover service (NOTING the father’s time with the child on Sunday will cease upon commencement of Saturday time).

20. Paragraph 3 of the orders made 24 November 2017 are in the following terms:-

    For the purposes of handover, the father collect the said child from McDonalds at the corner of D Street and F Street, and the mother collect the said child at the conclusion of the father’s time at McDonalds on the corner of G Street and H Street.

21. The proceedings had been listed for trial to commence on 28 November 2018. By orders made 22 November 2018 the trial dates were vacated. 

22. On 17 December 2018 the matter was transferred to the Family Court of Australia and the father’s time with the child was as follows:-

    (a)Each Saturday from 10:00 am to 4:30 pm commencing on 22 December 2018; and

    (b)Each Thursday from 10:30 am to 4:30 pm commencing on 27 December 2018.

23. Paragraph 3 of that order further provided that upon the parties being accepted into the K Children’s Contact Service, handover is to take place at the K Children’s Contact Service and conclude there.

Preliminary matters

1. Following the filing of the application for contravention, the mother filed an Application in a Case on 29 March 2019 seeking to discharge paragraph 2 of orders made 17 December 2018 which provided for the time that the child was to spend with the father.

2. For his part, the father filed an Amended Initiating Application on 29 March 2019 seeking that by way of final orders the parties have equal shared parental responsibility for the child, that the child live with him and spend significant and substantial time with the mother.

3. The father also filed an Amended Response on 12 April 2019 that seeks that paragraph 2 and 3 of orders made 6 March 2018 and order 3 of orders made 17 December 2018 directing the parties to arrange for handovers to take place at the K Children’s Contact Service (“Contact Service”) be discharged.

4. The father also seeks that handovers take place inside the entrance of the Subway Restaurant located at L Street, Suburb N.

5. On an interim basis the parties reached agreement that the father’s time with the child would continue as provided for in paragraph 2 of orders made 17 December 2018 provided that all such time take place under the supervision of the paternal grandfather.

6. The Court ordered a report pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) and the proceedings are adjourned to 2 May 2019 for mention and further consideration of an expedited hearing.

The contravention application

1. At the commencement of the hearing the mother abandoned the alleged breaches in paragraphs 8 to 13 of the application and proceeded only in respect of count 1 (paragraphs 6 and 7) alleging that the father is in breach of order 2 of orders made 6 March 2018 in that he has failed to complete his enrolment in the K Children’s Contact Service for the purposes of handover as ordered.

2. The father does not admit the breach. The matter proceeded by way of a contested hearing.

The law

1. It is div 13A of pt VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention for orders made under the Act. The alleged contravention as set out arises from the parenting orders made by Judge Cole on 6 March 2018

2. Subdivisions C to F of div 13A of pt VII provide the orders available to the Court that can be made in instances where:

   (a)the contravention has been alleged but not established (sub-div C);

   (b)the contravention is established but reasonable excuse for the contravention is found (sub-div D);

   (c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   (d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

Section 70NAC – Meaning of contravened an order

A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:

(a)where the person is bound by the order - he or she has:

(i)intentionally failed to comply with the order; or

(ii)made no reasonable attempt to comply with the order…

Section 70NAE – Meaning of reasonable excuse for contravening an order

(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but not limited to, the circumstances set out in (2), (4), (5), (6) and (7).

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4)…

(5)…

(6)…

(7)…

Section 70NAF – Standard of proof

(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

(3)The court may only make an order under:

(aa)paragraph 70NEB(1)(da); or

(ab)paragraph 70NECA(3)(a); or

(a)paragraph 70NFB(2)(a), (d) or (e); or

(b)paragraph 70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered less serious.

2. In respect of a more serious contravention the provisions are to be found at s 70NFA.

3. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.

Rule 21.08 – Procedure at hearing

At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegation;

(c)hear any evidence supporting the allegation;

(d)ask the respondent to state the response to the allegations;

(e)hear any evidence of the respondent; and

(f)determine the case.

Evidence and submissions

Count 1

1. The mother relies upon paragraphs 4 to 13 of her Affidavit filed 12 February 2019. She asserts that following the orders made on 6 March 2018, the parties did attend at the Contact Service to undertake the enrolment.

2. The enrolment could not be completed because the orders that had been made by the Court were not able to be facilitated by the service.

3. Handovers are only able to be facilitated during the operating hours of the service as follows:-

   Fridays – 5.00 pm only;

   Saturdays and Sundays (on a fortnightly basis) 10.00 am, 2.00pm, 4.30 pm to 5.00 pm.

4. Accordingly, the parties were not able to complete the enrolment process.

5. On 17 December 2018 orders were made which were able to be facilitated by the Contact Service.

6. The mother relies upon Exhibit “1” which is a letter from her solicitors to the father’s solicitors dated 4 February 2019 requesting that the father complete his enrolment for the Contact Service including the intake interview.

7. The letter confirms earlier correspondence of 24 January 2019 that the mother has enrolled in the Contact Service but the father has yet to complete the enrolment.

8. On 30 January 2019 the Contact Service advised the mother that the father had not attended for the scheduled intake interview.

9. The father was put on notice that the mother considered his refusal to complete the enrolment process was a breach of order 2 of orders made 6 March 2018.

10. The father was further advised that if he did not complete the enrolment as requested then a contravention application would be issued without further notice.

11. Whilst the subject of an objection Exhibit “2” is an email from the Director of the Contact Service to the mother dated 11 February 2019 confirming that the father had not attended at the intake appointment and was it was understood that he did not intend to reschedule. Accordingly, the Contact Service was not able to further assist.

12. In cross examination the father conceded that he was aware that he had not completed the final stage in the enrolment process which was the completion of the Service Agreement.

13. Paragraph 55 of the father’s Affidavit filed 12 April 2019 confirms his understanding that whilst the parties had commenced the enrolment process it had not been fully completed given the inability of the Contact Service to facilitate the ordered handover times.

The father agreed that handover was to be conducted at the Subway Restaurant, Suburb N, until the parties had completed their enrolment at K Children’s Contact Service

1. and were accepted into the service.

2. Following orders made on 17 December 2018 the father attended at the service by telephone and in person. He understood that the final document that was required was the Service Agreement for handover. The father refused to sign this document. Paragraphs 61 to 70 sets out the reasons for the father’s refusal. In summary, the father is engaged in attending his children’s sporting commitments and on Saturday the game finishes at a time that would not enable him to get to the Children’s Contact Service as required.

3. Paragraph 66 summarises his position:-

   Given my other obligations to my sons sporting activities on weekends, I could not guarantee I could be there earlier than 10.00am and probably not before 10.20-10.30am and so could not with a clear conscience sign the Service Agreement.

4. He highlights that the Contact Service does not provide a mid-week service and that in any event part of the order that the parties have now agreed could not be facilitated at the Contact Service and would need to be undertaken at the Subway Restaurant, Suburb N.

5. At all relevant times the father was aware of his obligation to complete the enrolment at the K Children’s Contact Service. He understood that the order remained in operation and orders made 17 December 2018 did not discharge or vary the order of 6 March 2018.

6. The father did not want to sign the Service Agreement for his personal convenience.

7. Accordingly, I find Count 1 proven.

Appropriate penalty

1. I consider that the breach of the order should be regarded a sub-division E breach namely, a less serious contravention.

2. I am obliged to consider the powers of the Court pursuant to s 70NEB.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 May 2019.

Date: 2 May 2019