DELAHUNTY & DELAHUNTY
[2019] FamCA 304
•14 May 2019
FAMILY COURT OF AUSTRALIA
| DELAHUNTY & DELAHUNTY | [2019] FamCA 304 |
| FAMILY LAW – CONTRAVENTION – Where the father alleges that the mother contravened parenting Orders reached by consent on five occasions – Where the mother denies contravening on four occasions and asserts she had a “reasonable excuse” for contravening on the other occasion – Where the mother is found to have contravened parenting Orders by not doing all she reasonably could to discharge her obligations of compliance with the Orders on three occasions and there was no contravention on the other two occasions – Where the mother is ordered to pay the father’s flight costs in respect of the three successful contraventions and make-up time is ordered. |
| Family Law Act 1975 (Cth) |
| Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5 In the Marriage of Stevenson & Hughes (1993) FLC 92-363; [1993] FamCA 14 |
| APPLICANT: | Mr Delahunty |
| RESPONDENT: | Ms Delahunty |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Davies |
| FILE NUMBER: | SYC | 4163 | of | 2016 |
| DATE DELIVERED: | 14 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 7 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Galloway |
| SOLICITOR FOR THE APPLICANT: | Marsdens Law |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Life Law Solutions |
| INDEPENDENT CHILDREN’S LAWYER: | Appearance excused |
Orders
IT IS DECLARED
That on 25 August 2017, the Respondent Mother (“the mother”) contravened paragraph 4(d) of the Orders of Federal Magistrate Purdon-Sully (as her Honour Judge Purdon-Sully then was) of 17 September 2012 (“the said primary Orders”) without reasonable excuse.
That on 16 September 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.
That on 1 December 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.
That the three contraventions just referred to are considered “less serious contraventions” and dealt with pursuant to Part VII Division 13A Subdivision E of the Family Law Act 1975 (Cth).
IT IS ORDERED
That the child C born in 2010 shall spend additional time with the Applicant Father (“the father”) to compensate him for the time that she did not spend with him consequent upon the contraventions of the mother declared herein, being an extra two whole weekends consisting of time from Friday evening to Sunday evening and one extra week of either the Queensland June/July or September/October 2019 school holidays, all at the father’s election, with the father to give notice to the mother of his election in accordance with requirements of the existing said primary Orders, the child to spend such additional time with the father as she does pursuant to the existing said primary Orders either in Sydney or in Brisbane at the father’s election.
That the mother pay the father the sum of $2,788 to compensate the father for the costs of his airfares and C’s airfares thrown away over the three occasions of the mother’s contravention as declared herein.
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 Delahunty & Delahunty 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 BRISBANE |
FILE NUMBER: SYC 4163 of 2016
| Mr Delahunty |
Applicant
And
| Ms Delahunty |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 5 February 2019, the Applicant father in these pending parenting Orders proceedings filed a Contravention Application against the Respondent mother. It was listed for hearing before me on Tuesday, 7 May 2019. On that day, the father appeared, represented by Mr Galloway of counsel and the mother appeared, represented by Mr Page of Queen’s Counsel.
The father alleged that the mother had contravened primary parenting Orders made by consent in what was then called the Federal Magistrates Court as long ago as 2012. He particularised five separate alleged contraventions of those Orders – three of those in late 2017 and the other two in late 2018. The mother denied having contravened as alleged in 2017 and on the second of the two occasions in 2018, but admitted contravening as alleged on Christmas Day 2018, asserting a reasonable excuse for doing so.
The hearing took a full day with both the father and the mother being cross-examined by opposing counsel. At the end of the hearing, I reserved my judgment.
Some background
The mother and the father only have one child of their relationship. Their little girl’s name is C and she is eight and a half years old. They were only together in a fairly short relationship when C was conceived and they separated soon after she was born. C has lived with her mother from her birth and did not spend much time with her father in the first few years of her life.
The father commenced proceedings in what was then called the Federal Magistrates Court in 2011 seeking Orders that provided for C to spend time with him. On 17 September 2012, Federal Magistrate Purdon-Sully, as her Honour then was, made an extensive set of parenting Orders with the consent of the father and the mother. The Orders provided for the parents to have equal shared parental responsibility for C and for C to live with the mother. They also provided for C to spend time with the father, “progressively increasing in time” in a prescribed fashion. In particular, the Orders provided for C to spend time with the father as follows:
4.That the Father shall be allowed to spend time with the child, progressively increasing in time as follows, PROVIDED that at all such times the child is to remain in the Father’s care:
a.Pre November 2013 - up until 29 November 2013, for up to one (1) weekend each month in Brisbane from 9.00 am to 3.00 pm Saturday and from 8.00 am to 12 noon Sunday;
b.Post November 2013- overnight visits to commence:
(i)from 29 November 2013, for 12 nights each year falling on weekends when the Father is in Brisbane, plus four (4) x one (1) overnight visits each year during the Queensland gazetted school holidays in Brisbane;
c.from the start of the school year in 2015, for 12 nights each year falling on weekends when the Father is in Brisbane plus overnight visits during the Queensland gazetted school holidays in Brisbane as follows:
(i)for two (2) nights in the Easter school holidays;
(ii)for three (3) nights in the June/July school holidays;
(iii)for four (4) nights in the September/October school holidays; and
(iv)for five (5) nights in the Christmas School holidays starting at 6.00 pm 20 December 2015 and return the child on Christmas day by 6.00 pm;
from the start of the school year in 2016, for 12 nights each year falling on weekends, plus half of all school holidays each year during the Queensland gazetted school holidays, alternating between the second half in each even numbered year commencing 2016 and the first half in each odd numbered year commencing 2017 PROVIDED HOWEVER for the Christmas 2016 holidays, the child shall only spend seven (7) nights in block with the Father instead of a two (2) week block that year and save and except for the Christmas school holidays, the Father shall be allowed to spend at least two (2) weeks with the child commencing 2017 including Christmas day each odd numbered year.
Interestingly, those Orders included some notations listed under a heading that said “THE COURT NOTES”. Relevantly, one of them was as follows:
The Mother and Father acknowledge they shall review the arrangements for Christmas school holidays with the intention of the Father spending half of those holidays as to be discussed between the parties from 2018 onwards.
Since the separation of the mother and father, the mother and child have lived in Brisbane whilst the father has principally lived in Sydney. He works in the public service, which sometimes involves trips that take him away from home for months at a time. He has had such trips away from home in the years since he joined the public service and since the 2012 Orders were made. The notations to the Orders acknowledged that this would happen from time to time.
It is reported (in the Family Report prepared by Mr K dated 10 January 2018) that C only began spending overnight time with her father, notwithstanding the provisions of the Orders set out above, at the end of 2014 and on a regular basis from the beginning of 2016. Clearly then, the provisions of the Orders had not been strictly adhered to.
By the time overnight visits began on a regular basis, it appears the father had re-partnered. His new partner has a son of a previous relationship who is not much different in age from C. He lives with his mother and the father and spends time with his own father on a regular basis. The father and his new partner have a child of their own as well. She was born in 2016.
Though, interestingly, it is included as paragraph 16 of the Orders of September 2012, the mother gave the Court an undertaking not to leave C in the unsupervised care of her brother. Her brother, a single man, who is around 35 years of age, has a history of committing sexual offences against children. Indeed, he admits, and it seems the mother and maternal grandmother concede that he is a paedophile – being sexually attracted to children. He has spent time in prison. His offences are said to have all been committed against boys. He asserts that he is only attracted to young boys, not girls. The mother and maternal grandmother are reported to accept this assertion.
At one point in time, for some time, the mother and child, her brother, and their mother and the mother’s niece (who she apparently treats as a little sister) were all sharing a home.
In 2016, C was regularly visiting her father in Sydney, for weekend visits and holiday visits. When she went to Sydney and stayed with him and his partner and their new baby in the June/July school holidays, the father did not send her back to Queensland at the end of the stay. It seems he asserts he became concerned by some things C had told him and/or his partner that made them think that the mother’s brother had been “grooming” C and had touched her in a sexually inappropriate way. The father commenced fresh parenting Orders proceedings in this Court in Sydney. In those proceedings, he seeks final Orders that C lives with him in Sydney and spends time with her mother in Brisbane on a regular basis.
The mother joined those proceedings and denied that she had breached her undertaking and ever left C alone with her brother. The Court ordered the child to be returned to her mother in Queensland, made an Order that the child not be brought into contact with the mother’s brother at all and transferred the proceedings to Brisbane. They have been in this Court’s pending cases list ever since. Recently, the proceedings have been listed for a trial management event before Justice Carew of this Registry in July this year. It is expected they will be listed for a final hearing a few months after that.
It is reported that C was spending regular overnight time with her father in Sydney after that time and into 2017. It was in the second half of 2017 when the circumstances giving rise to the first three alleged contraventions occurred.
Before I turn to a consideration of each individual alleged contravention – three between late August and early December 2017 and two in December 2018 – I also acknowledge that the evidence established that the father filed an Application in a Case in December 2017, after C did not spend the weekend with him at the beginning of December.
That application came before this Court on 19 December 2017. On that day, Mr Galloway represented the father, Ms Davies of the Legal Aid Office Queensland was the Independent Children’s Lawyer and the mother appeared without legal representation. The Orders that were made by Carew J that day, with the consent of the parties, provided that “[i]n order to facilitate the time provided for between the child and the father as set out in paragraph 4d of the order made on 17 September 2012” C was to spend time with the father from 5.00 pm that very day (19 December 2017) until 5.00 pm on 30 December 2017. Her Honour also made an Order, no doubt based on evidence about the three failed handovers that had recently occurred at that time, that C be brought into Child Dispute Services in the Brisbane Registry and for one of their most experienced senior Family Consultants to “help facilitate the changeover”.
In his cross-examination of the mother at the contravention hearing, Mr Galloway put to the mother that although the Orders made by Carew J that day were made by consent, she (the mother) was very upset about it that day and cried and wailed at the Court or just outside it. Of course, as counsel putting propositions to the witness, Mr Galloway was not giving evidence himself and there was no actual evidence adduced by any person saying that the mother did react in that way that day, but the mother’s denials of those positive assertions were not entirely convincing, I considered.
Carew J’s Orders also provided for C to spend time with the father on a further three specific weekends and three school holiday periods through 2018, really just confirming the time that she was to spend with him over the next year pursuant to the 2012 Orders.
Apart from the disagreement about the 2018/2019 Christmas school holiday period it is not disputed that C went with her father to Sydney that day and stayed for 10 days and that she has continued to spend time with him pursuant to the 2012 Orders right up until the hearing of the Contravention Application. It appears, therefore, that having the handover facilitated by Mr Perry at Child Dispute Services on 19 December 2017 was a circuit breaker in the process of ensuring that C does go and spend time with her father. It is also not in dispute that C has been going down to spend time with her father, flying unaccompanied with one of the major domestic airlines. Clearly, though I concluded that the mother is not entirely happy with the fact that C is going to spend time with her father on a regular basis, asserting, effectively, that C does not enjoy the time, the mother has been able to get her to board the aircraft to go down since that day in front of Carew J on 19 December 2017.
The Family Report of Mr K dated 10 January 2018 was also adduced into evidence. Mr K had interviewed the members of the family in August 2017 before the first alleged contravention. He interviewed C on 14 August 2017 and then interviewed her again on 5 December 2017, just after she had not spent time with her father on the three occasions that contraventions are alleged.
Mr K reported that C told him on 14 August that her father “told her a little lie about how her uncle… pinched her on the private parts “but he didn’t””. Mr K’s report suggests that much of his conversation with C that day was about her uncle, her desire to spend time with him again and about their history together.
Mr K reported that C acknowledged that she had recently spent a weekend in Sydney at her father’s place and that when she was asked if she likes going to her father’s she said “yeah but not really”. She is reported to have said that she thought it was good that her father had a pool but she “just [didn’t] like going to Sydney”. Mr K reports that C was unable to state a reason why when asked. After reporting that C said, when asked if she ever feels worried, “not at my mum’s but at my dad’s house cause I don’t like going to my dad”, she is reported to have said that the worry does not last the whole day. When asked what it is like at her dad’s, C is reported to have said “fun and stuff”, that she likes playing with her sister and step-brother and that she is “sort of happy” with her father and his partner.
Mr K then reports that C knew that her parents were together a long time ago and that they did not get married because “[her] dad said some lies to [her] mum but [she didn’t] know what lies they were”.
Mr K wrote:
…She was not sure whether her mother liked the fact that she visits her father. When asked whether she thought her mother would like it, she responded, “no” As to why, she said, “because my dad lies”. When asked what about, she responded, “about [my uncle] pinching me on the private part but he didn’t”.
Mr K then reported that C had told her mother that her father had said that her uncle had pinched her “on the private part” and that C had said her mother had said no and that she believes her mother.
She was asked about things she likes. She is reported to have said that she enjoys playing with her mother and her friends. When asked if there things she did not like, she is reported to have said “going to Sydney”. When asked about that, she is reported to have again said because her father lies sometimes. When she was asked if she feels angry with her father she is reported to have responded in the affirmative. When she was asked “the three wishes question”, the third thing she said was “[t]hat I don’t have to go to Sydney anymore because my dad lies”.
Interestingly, Mr K also reported that he asked C about how she thinks her mum feels when her father talks to her on the phone about Sydney. He reported that C responded that her mum “rolls her eyes like this” and demonstrated an eye-rolling movement.
Mr K wrote of the December interview with C that took place after she had not gone to Sydney with the father on the three occasions – August, September and early December 2017. He reported that C said that she had not been to see her father as “[she] just [didn’t] want to go anymore… just [didn’t] want to be with [her] dad”. She was reported to have said that it feels scary going to Sydney and that she just wants to be with her mum. Mr K did report that C told him that her mother “encourages her to go to her father by telling her that she might get some presents there but she still doesn’t want to go”.
The alleged contraventions
Count 1
There is no dispute between the mother and the father that C was to spend the weekend with the father in Sydney from Friday, 25 August 2017 to Sunday, 27 August 2017. There is no dispute that the father gave the mother the requisite notice of his intention to have C that weekend, booked flights for his travel to Brisbane to collect C and return with her to Sydney and for their return to Brisbane on the Sunday and his return to Sydney again after delivering C back to her mother.
There is no dispute that the mother and the father agreed that the father would exit the domestic terminal at Brisbane Airport and meet the mother and C at one of the motor vehicle passenger drop off zones for C to transition from the mother’s care to the father’s care.
The father said that he arrived in Brisbane that Friday at about 3.30 pm and walked to the agreed meeting point at about 4.50 pm. The mother arrived in her car and pulled over. The father walked to the car and by the time he got to it, the mother and C were out of the car and C, who was almost 7 years old at the time, was in the mother’s arms. The father said that C and the mother were both crying. The mother, in her oral evidence, did not accept that she was crying. I accept the father’s evidence that she was and not the mother’s evidence that she was not. I saw the mother in Court all day during the hearing. She was extremely anxious and, at times, became upset to the point of crying. She said that she was nervous because she was in Court. The Family Report writer wrote in his January 2018 report that the mother was anxious when he interviewed her. Family Report interviews and court hearings about alleged contraventions are, I accept, stressful. However, I consider that the mother has quite an anxious disposition and that the circumstances that presented to her that Friday afternoon, with her daughter clinging to her and crying, would have also caused her to become upset and to cry, just as the father said. I do not consider that the father made up the evidence that the mother was crying too.
The father said that the mother did not put C down so that he could leave with her. He asked C what was going on. She said to him that she did not want to go. He and C had a conversation in which he asked her why she did not want to go with him and she gave him various reasons that included “I don’t want to go”, “because I’ll miss my toys”, “[b]ecause mum’s home is more like a home”, “I feel like I want to stay with mum”, “Sydney is not really like a home to me because I have more friends in Brisbane”, “[b]ecause my mum’s not there”, “I won’t see my mum’s body”, “I’ll miss my friends” and the like.
The father said that the mother did say to C that she had to go and that she would have fun but that at the same time she made no effort to put the child down on the ground. There was no effort to hand her to the father.
The father agreed that he said to C “that’s enough C, we’ve got to go” and that C had said back to him “don’t get mad at me dad, I’m upset”. He agreed that he had put his hand on her back whilst she was in her mother’s arms and that C pulled away from his touch.
The traffic control officer approached the parents and suggested that the car be moved a little further along to a preferred parking spot. The father agreed that when the mother asked C to wait with the father whilst she moved the car that C refused and that the mother took her and put her in the car whilst she moved it. The mother got her out again and brought her back to where the father was waiting but again was holding her in her arms and would not put her down.
The father said that he made no effort to take C from her mother’s arms, saying “I wasn’t going to snatch her out of her arms”.
The father said that this scene played out over about one and a half hours, during which time, at no stage, did the mother put C on the ground. The mother’s evidence, not disputed by the father, was that she said to the father towards the end of this time “Obviously it’s your call. I don’t know what to do”. The father said that the return flight to Sydney was booked for 7.35 pm and that he eventually gave up waiting for C to transition to his care. He said that he then said to C “Bye love, love you very much” before saying to the mother “I think there is a lack of encouragement here”. The mother said back to him “I have been.” The father replied “Well, I haven’t heard much unfortunately”. He then said to C “I love you very much, it would have been wonderful to have you in Sydney”. The child again said “I don’t want to go”. The father turned to leave and said to the mother as he left “...you have not encouraged C enough to come with me”.
The father gave evidence that he sent a text message to the mother early the next morning, and also an identical email. The words he wrote were as follows:
I note that you failed to facilitate a handover for [C] yesterday on Friday 25th August 2017. I note that [C] was physically restrained by you for the duration of the time I was present, that being from approximately 5pm to 6:30pm Friday 25th August 2017. The result of the incident has been a contravention of Order 4d dated 17 September 2012.
The mother said that she did not contravene the Order. She said that she makes every effort to make C feel excited and “less anxious about her trip” as she “is abnormally despondent” when preparing to go to Sydney. She agreed that she was at the airport that day for at least one hour and forty-five minutes and said that she was “trying to convince C to go with [the father]”. She said “I do not know what else I possibly could have done”.
The mother acknowledged that she had received the messages from the father the next day. She also said that she received a letter from his solicitors a few days later in which they asked for make-up time on his behalf and said that a contravention application might otherwise be brought. The mother said that she did not respond as she did “not see it in C’s best interests to put her through that again unnecessarily”.
Count 2
Again, there is no dispute between the mother and the father that C was to spend time with the father in Sydney during the school holidays from Saturday, 16 September 2017 to Sunday, 24 September 2017. There is no dispute that the father had given the mother the requisite notice of his intention to have C for that holiday week, booked flights for his travel to Brisbane to collect C and return with her to Sydney and for their return to Brisbane on the following Sunday and his return to Sydney again after delivering C back to her mother.
There is no dispute that the mother and the father agreed that the father would exit the domestic terminal at Brisbane Airport and meet the mother and C at one of the motor vehicle passenger drop off zones for C to transition from the mother’s care to the father’s care.
The father arrived in Brisbane at about 7.35 am on the Saturday morning and walked out of the terminal to the passenger drop off zone. Once again, by the time he got to the mother’s care the mother and the child were out of the car and C was again being held in her mother’s arms. Again, the same scenario as had happened a few weeks before played out. Whilst clinging to the mother, the mother stated the child said “I want to spend time with my mum”. This time, the father asked the mother if she would put C down on the ground. The father said that both C and the mother were distressed and crying. I accept that evidence. C said “No, no mummy, no.” The mother said that C told her not to put her down. The mother did not put her down and C would not let go of her.
The father repeatedly asked if the mother could put C down and C continued to express her objection to that. C said at one point “Sydney’s not my home because I don’t have a school there. And I don’t have friends there. And sometimes you don’t let me phone my mum”.
The father said to the mother “Okay, Ms Delahunty, if you don’t put her on the ground I will have to hold you in contravention of this order for the second time”. The mother then said “Well, Mr Delahunty, I’m not”. The father replied “Well, Ms Delahunty, you are not physically putting her on the ground”. The mother replied “I’m not contravening anything, I have made her available and look, it’s up to you to take her”. The father said “It’s up to you to put her onto the ground so I can take her”. The mother then said “Well she’s not letting me, Mr Delahunty”. The father said “So you are forcing me to snatch her off you by not putting her on the ground?” The mother responded “Well that’s up to you”. The father then simply told C it was good to see her and that he would talk with her that afternoon. He also said to the mother that he would be at the airport until 9.30 am if she changed her mind and he left.
He said that this time this scenario played out over about 20 minutes. A little after he left without C, the father sent the mother another text message in the same terms as the one he had sent after the earlier failed handover. He sent her a second text before he flew back to Sydney. The mother acknowledged receiving them but did not assert that she replied to them in any way.
The father alleges that by not facilitating the transition of C to his care that morning, such that C did not spend the first week of those school holidays with him, the mother contravened the Orders.
The mother denies that, asserting that she did all that she could. During her cross-examination, she told the Court that because of what had happened on the occasion of the handover in August, that she borrowed a portable digital dictaphone recorder from her brother and used it to record her interaction with C in the car on the way to the airport on this occasion. She also recorded the interaction with the father at the airport. She agreed that she had not disclosed this or any recording or transcript of the recording to the father. She agreed that he did not know that she was recording the interaction that day. She told the Court that she recorded it because she expected (a) that C would act in the same way again this time, and (b) that the father would again assert that she was contravening the Orders. She told the Court, effectively, that she decided to record the events that morning so that she would have evidence to help her if the father did allege that she had contravened. She asserted that she had done all that she could to encourage and facilitate C’s transition to her father. Whilst she referred to conversational dialogue in her affidavit of evidence that she filed in her defence, she did not attach a transcript of the recording or tender the recording into evidence. She did agree that she would produce it to the father’s lawyers if they ask for it after these proceedings.
Count 3
C was to spend time with the father next on the weekend of Friday, 1 December to Sunday, 3 December 2017. It had been agreed that the father would travel to Brisbane, attend at C’s school awards ceremony that evening, and collect her from her mother for the weekend. He had booked hotel accommodation for them in Brisbane and a very early flight to Sydney the next morning before returning on the Sunday evening.
The evidence supports a finding though, that there was no actual agreement on the precise detail of the handover to take place at that award ceremony. The father asserts that he believed it was going to take place prior to the ceremony commencing at 6.30 pm outside the venue at the school. The mother asserts differently to that and that in the end she sent an email to the father’s solicitors informing them that she would meet the father “halfway through the ceremony at 8pm outside the venue to conduct the changeover”.
The father said that he nevertheless waited outside at 6.30 pm but that the mother did not present with the child there at that time. He sent the mother a text message pointing this out to her. He then attended the ceremony.
The mother said that at around 7.50 pm she took C outside, having changed her out of her school uniform and collected her luggage from the car.
The father agreed that at around 8.00 pm he received a text message from the mother telling him that they were outside and that he then went outside and saw the mother and C to be sitting on a bench outside. He said that C’s maternal grandmother was also present. He said that as he approached, he saw the mother to be holding C tightly in her arms. They had a conversation again, but he said that for the entire time of the conversation the mother was holding onto C, not letting her go.
The father agreed that again C said to him that she did not want to go to Sydney, saying things such as “I just didn’t get to spend time with mum today” and that she wanted to stay with her nanna. He agreed that he did hear the mother “encourage” C to go with him, but he again said that she did not put C on the ground whilst saying these things. The father said, and I accept, that again, both C and the mother were crying during this exchange.
He said that once again he decided to leave without C after about 10 minutes, telling C that he did not want to “force her to come”.
The father sent the mother a text a few minutes later with his hotel address for her to drop C to should the mother wish to “conduct a handover”. That did not happen and the father left for Sydney the next morning without the child.
He asserts the mother contravened the Order by not facilitating a handover that permitted C to spend the weekend with the father. The mother once again says that she did not contravene as she had done everything she could to encourage the child to go with her father. The mother said that C was despondent that night and had said to her, whilst they were waiting for the father, “this is the worst time of my life”. The mother said that she had responded to C that she loved her and that C would be fine in Sydney once she was there. She said that C kept telling her she did not want to go to Sydney before the father had even come along to where they were waiting outside. The mother said that she told C that she has two parents who love her and need to share her.
Again, the mother said that she had recorded the exchange that occurred with the father that night and said it was for the same reasons that she had taped the previous failed handover. Again, she conceded that she had not told the father that she was recording the exchange and she did not produce or adduce into evidence the recording or a transcript of it.
Count 4
The primary parenting Orders included provision for communication. Paragraph 12(a) provides:
That when the child is living with or spending time with one parent:
a. the other parent may communicate with the child at all reasonable times and by all reasonable methods, and the parent with whom the child is with, must facilitate and encourage such communication; …
There is no dispute between the parties that the father rang the mother’s mobile telephone number on Christmas Day 2018 to speak with C. He did that at 3.05 pm and 5.30 pm Queensland time. He said he also sent the mother a text message asking the mother could he speak with C to wish her a Merry Christmas. He sent that at 3.06 pm Queensland time. He got no reply to his calls or his text message. Christmas Day 2018 fell on a Tuesday.
He asserts the mother contravened that primary Order by not facilitating his communication with C that day.
The mother agreed that there had been a contravention, but asserted that she had a reasonable excuse for contravening. She said that the father had not made any arrangements with her in advance about a time he would call C on Christmas Day, but that she expected a call in the morning. The mother said that at the time the father called, she and C were “at a friend’s place for Christmas dinner” and that “during the hustle of the day” she had misplaced her phone. She said in her oral evidence that she later found it under the lounge at her home. Her evidence was that when they “arrived home around 7.00 pm”, after finding her phone, she encouraged C to call her father back. She said that she said to C “he misses you and just wants to say Merry Christmas. You can tell him about your presents”. She said that C replied with “words to the effect of, ‘But it’s not Saturday or Sunday! Please don’t make me talk!’”. The mother said she “left it at that” as she did not want to upset C on Christmas Day.
She asserts that evidence constitutes her reasonable excuse.
Count 5
The father asserts that the Orders of September 2012 provide that C is to spend the second half of the 2018 Christmas school holidays with him. He said that period was to commence on 29 December 2018. He had booked a flight to Sydney on that day for C and had booked a week’s accommodation at a holiday resort at Town L, just north of Town M. He said that he emailed the flight booking details to the mother on 21 December 2018. He received an email from the mother on 22 December 2018. It said:
Hello [Mr Delahunty]. My position had not changed. I do not believe it is C’s best interests to spend a month in Sydney. Her wellbeing is, and always has been my priority. I will book C a flight for Sunday 13 January 2019, to return on Sunday 27 January as per your flight confirmation. [Ms Delahunty].
The father caused his solicitors to write to the mother’s solicitors on Christmas Eve insisting that the Orders provided for C to spend half the holidays with him and seeking confirmation that C would be flying down on 29 December. A copy of that letter was forwarded to the mother herself. No response was received.
The father then instructed his solicitors to prepare and file an urgent Application in a Case and supporting affidavit. In that affidavit, the father set out that he had booked the week’s accommodation at the resort. Those documents were served on the mother (or at least came to her attention) on 28 December 2018. The application was never listed and the father did not press it.
The mother did not put the child on the plane on 29 December. She did not tell the father again, after she learned of his plans on 28 December, that she still was not sending C to Sydney on 29 December. The father went to the airport on 29 December and waited for C to get off the plane. He texted the mother and told her that C did not get off the plane. Airline staff confirmed for him that C had not boarded the plane. There is no evidence that the mother contacted him at this time.
The mother’s solicitors then wrote to the father’s solicitors on 7 January 2019 and confirmed that the Application in a Case was apparently not being proceeded with. They reminded the father’s solicitors that the mother had said as far back as 28 August 2018, in correspondence, she did not consider that it was in C’s best interests to go to Sydney for four weeks in the Christmas school holidays. They also confirmed that C would be flying down on 13 January and returning to Brisbane on 27 January.
When asked in her oral evidence why she did not send C for two weeks on 29 December after learning of the father’s holiday booking, she told the Court that she did not do that because she believed the father would just hold onto C until 27 January if she did.
She maintained the position that she did not understand the primary Order to oblige her to send the child for four weeks in that holiday period, though confirming that she understood that half of the Christmas school holiday period was four weeks. She said that the way she read the Orders, she thought she was only obliged to send C for two weeks in those holidays.
She asserted that she did not contravene the order though she intentionally only sent her for a two week period.
The law
For the mother, Mr Page of Queen’s Counsel made a submission that the provisions of Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”) are only to be applied in enforcing ongoing, or likely to be ongoing, non-compliance with a parenting order rather than in dealing with a past contravention. He referred to s 70NAA(1) which provides:
This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
With respect, I do not accept the submission that the powers conferred on the Court in Part VII Division 13A are only available to the Court when there is an ongoing non-compliance. The Division is headed “Consequences of failure to comply with orders, and other obligations, that affect children”. The word “contravention” is introduced in the Division in s 70NAA(3), where it says that “The other orders that the court can make depend on whether: (a) a contravention is alleged to have occurred but is not established…; (b) the court finds that a contravention has occurred but there is a reasonable excuse for the contravention…; or (c) the court finds that there was a contravention and there is no reasonable excuse for the contravention…” (my emphasis). There is no suggestion therein that the Orders the Court can make depend on a finding that non-compliance or “contravention” is continuing. Indeed, two of the most significant types of parenting Orders, namely a parenting Order that deals with whom a child is to spend time and a parenting order that deals with whom a child is to communicate, by their nature, impose obligations that are not necessarily constant, but rather are intermittent. Clearly, an obligation imposed upon a parent with whom a child lives to comply with an order that a child spends some time with the other parent or another person, or that a child communicates at a particular time with the other parent or another person, can be contravened in a one-off, non-continuing way. The language of the Division as a whole simply does not allow of an interpretation that excludes consideration of past, non-continuing contraventions of such Orders. If that was to be the case, that would have to be clear in the language of the Division. The Division does not permit of such contraventions being simply permitted to occur from time to time without potential sanction of the contravener at the application of the person who has been deprived of time with or communication with the child.
Section 70NAC sets out the meaning of “contravened an order”. It provides:
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
(b) otherwise--he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Pursuant to s 70NAD(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with s 65NA in relation to the order. Subsection 2 of s 65NA says that a person “must not (a) hinder or prevent a person and the child from communicating with each other in accordance with the order; or (b) interfere with the communication that a person and the child are supposed to have with each other under the order”.
In respect of the first part of s 70NAC, to find that the mother has intentionally failed to comply with the primary parenting order I would need to be satisfied to the requisite degree[1] of that intention. In this particular case, I am not satisfied that the mother intended not to send the child with the father on the first three occasions. I have to say also that the evidence does not persuade me that she intended to not let the child speak with the father when he called on Christmas Day 2018. She said that when he called she did not have her phone with her, through inadvertence, and therefore simply could not facilitate the communication the father was initiating. The evidence did not persuade me that the mother was not being truthful about that. As for the final alleged contravention though, the mother clearly intended not to send the child for four weeks but rather only for two weeks. About that intention there can be no doubt. Determination of that alleged contravention rests on the Court being satisfied that the primary Order obliged the mother to send the child to Sydney for four weeks rather than two. I shall return to that.
[1] That can vary, as the burden of proof is on the balance of probabilities generally under this Division but changes to satisfaction beyond a reasonable doubt in certain circumstances.
The second limb of the meaning of contravention imports an objective element. If the Court is satisfied that the person who is bound by the order “made no reasonable attempt to comply with the order” then the Court can be satisfied that there has been a contravention of the Order.
The question of how far a parent has to go for the attempt made to comply with an Order to be considered as reasonable has been authoritatively considered. In In the Marriage of Stevenson & Hughes (1993) FLC 92-363; [1993] FamCA 14 the Full Court said:
It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it… an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.
There can be no doubt that the mother in this case knew of her obligation to comply with that part of the parenting Order that provided for the child to spend time with the father. The Orders had attached to them the standard Court issued document that sets out under the heading “Your legal obligations” the following:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but you must also positively encourage them to go and do so.
That the mother said that she did all she reasonably could and did actually utter words of “encouragement” is evidence that she knew that she was required to make a reasonable attempt to comply. That she determined to borrow a recording device and to secretly record the interchange at the second and third handovers of the three particular counts is further evidence that she knew and understood the positive obligation upon her.
So the question I consider must be determined in this matter, at least in respect of the first three alleged counts of contravention, is whether the mother’s actions and words were sufficiently positive enough to be considered as meeting her obligation to act reasonably to ensure the child went to spend time with her father on each of those three occasions.
In considering this question, I consider that my findings may, in part, depend on inferences about the relevant facts drawn from findings about ex post facto events. Justice Warnick sitting as the Full Court but disposing of the appeal as a single judge in Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5 said as much in paragraph [43].
I consider the evidence of the reporting of Mr K to be relevant, particularly that which he reports C to have told him. I consider the evidence that an Order had to be made for the child to be brought into Child Dispute Services on 19 December 2017 and transitioned to her father’s care with the assistance of a senior Family Consultant to be relevant. I consider that the evidence that she has travelled to Sydney as required ever since then, often without her mother, to be relevant.
I also consider the evidence, first adduced in the oral evidence of the mother at the contravention hearing, that she arranged to secretly record the exchange at the arranged handover point on the second and third occasion of alleged contravention to be relevant.
I am satisfied that on each of those three occasions that the child did not spend time with her father in 2017 that the child was quite aware that her mother did not really like her going to Sydney and that her mother did not really want her to go. I am satisfied that the encouragement that the mother gave the child within the father’s hearing on each of the three occasions, apparently recorded on the second and third occasion, was not enough to discharge the mother’s obligation to ensure that C spent time with her father, but rather was designed to give the impression that that she was trying to get her to go. I accept the father’s evidence that the mother was crying at the same time as the child was, on those occasions, and that she did not put her down or let her go. There is no evidence that the mother did or said anything to make it clear to C that she had to go with her father, whether she liked it or not. In all of these circumstances, I am satisfied that the mother did not discharge her obligation to act reasonably to ensure that the child spent the time with her father that the order required, whether she thought she did or not. In contrast, she clearly has on all the occasions since 19 December 2017.
I am satisfied that the mother contravened as the father alleges she did on each of the three occasions set out in Counts 1, 2, and 3.
As for Count 4, the question is whether the mother had a reasonable excuse for the contravention that she concedes occurred. Her evidence was that she did not have her mobile phone with her at the times the father rang and texted. I have no reason, on the evidence, not to accept that as truthful. Accordingly, when the father rang that Christmas Day, the mother could not “facilitate and encourage” the child to answer the phone or to speak with the father as he called. That is at least what the Order of September 2012 obliged her to do.
The Order did not provide, as so many Orders do, for telephone communication to take place at a particular time, or between certain hours. Did it then oblige the mother to actually to get the child to call the father back later when she learned that the father had called twice that afternoon rather than just tell the child that he had rung and ask her if she wanted to call him back? I am not satisfied that it did.
Many parenting Orders, particularly ones that the courts make at the request of the parents and with their consent, expressly provide, in such circumstances, for the parent with whom the child is living or spending time to actually cause the child to return the call of a parent who has made a call when the child was not in a position to take the call and speak with that parent. This Order from September 2012 does not include such an express provision.
Whilst, as I said during the hearing, the appropriate, reasonable thing to do would have been to get the child to actually call the father back or to dial the father’s number, hand the phone to the child and tell her to speak with him, I do not interpret the words “and the parent with whom the child is with, must facilitate and encourage such communication” to expressly oblige the mother to ensure that a call-back happens each and every time she notices a missed call or missed calls from the father that have come in at random, though reasonable times when she accidentally did not have her phone with her. If that is what parties mutually intend or expect to happen, then draft Orders that they ask the Court to make as Orders with their consent should reflect that in express terms.
I accept that the mother had a reasonable excuse for the contravention that occurred when the father called to speak to C on Christmas Day.
Finally, turning to Count 5. There was a lot of time spent during the contravention hearing dealing with the question of whether or not the mother considered the primary Orders obliged her to send C to spend half of the Christmas holidays (being four weeks) with the father in the 2018/2019 Christmas school holidays. Communications between solicitors were read out loud from iPhones. Copies of letters between them were adduced into evidence and much was sought to be made of these and the mother’s responses to questions about them in her oral evidence, by counsel for the father.
However, in my judgment, determining whether a contravention of this particular order has actually occurred, where the mother clearly admits deliberately not sending the child to Sydney for half the holidays, depends entirely on accepting that the Order expressly and unequivocally provided for the child to spend half of those holidays with the child.
I have set the relevant parts of the primary Orders out earlier in these reasons. Here they are again:
d.from the start of the school year in 2016, for 12 nights each year falling on weekends, plus half of all school holidays each year during the Queensland gazetted school holidays, alternating between the second half in each even numbered year commencing 2016 and the first half in each odd numbered year commencing 2017 PROVIDED HOWEVER for the Christmas 2016 holidays, the child shall only spend seven (7) nights in block with the Father instead of a two (2) week block that year and save and except for the Christmas school holidays, the Father shall be allowed to spend at least two (2) weeks with the child commencing 2017 including Christmas day each odd numbered year.
…
THE COURT NOTES:
C The Mother and Father acknowledge they shall review the arrangements for Christmas school holidays with the intention of the Father spending half of those holidays as to be discussed between the parties from 2018 onwards.
If the relevant provision in paragraph 4(d) above stopped after the words “each odd numbered year commencing 2017” I am satisfied there would be absolutely no doubt of the nature of the obligation. It would have required C to be sent for the second half of the 2018/2019 Christmas holidays. However, rather unfortunately, the wording of the second part of the relevant provision, after the words “PROVIDED HOWEVER”, in my judgment, creates ambiguity and uncertainty. The wording from there to the end of the paragraph does not create a clear and precisely determined obligation to allow for any more than “at least two weeks” in the Christmas holidays. The doubt about it mandating any more than that is increased by the inclusion of “Notation C” that observes that the parents acknowledged that they would review the arrangements for the Christmas school holidays “with the intention of the Father spending half of those holidays as to be discussed between the parties from 2018 onwards”.
The use of those words strongly supports an interpretation of paragraph 4(d) as to not actually include an ordered obligation on the mother to ensure that C did spend half of the 2018/2019 Christmas school holidays with the father. If it did, the inclusion of the notation would not have been necessary. I do not consider that it did clearly and unequivocally include such an obligation.
Accordingly, I am not satisfied that the mother contravened as alleged by the father in Count 5.
The outcome and its consequences
I have found that the mother contravened the primary Order requiring the child to spend time with her father on three occasions as alleged in late 2017, but I am not satisfied that she contravened the primary Order as alleged on the two occasions in December 2018.
For the father, it was submitted that the mother’s contraventions fall to be dealt with as less serious contraventions pursuant to Subdivision E of Division 13A of Part VII of the Act. I accept that. Counsel for the father made no submissions for there to be consequences for the mother other than orders that she pay the father money to compensate him for the money he lost in unused airfares and for his legal costs of these proceedings.
The powers available to the Court under s 70NEB are many and varied. They include, in ss 70NEB(1)(e) and (f) the power to make orders requiring the person who committed the contravention to compensate the person who reasonably incurred expenses as a result of the contravention for some or all of those expenses, as well as to make orders for the person who contravened to pay some or all of the costs of the other party to the proceedings.
Pursuant to s 70NEB(4), the Court must consider making an order compensating the person for the time the child did not spend with the child as a result of the contravention, but must not make such an order if it would not be in the best interests of the child.
Though the father did not ask for such an Order, considering the question as I must, I am of the judgment that making an Order compensating the father for the time that he did not spend with the child is actually in the child’s best interests in all the circumstances. I will make such an Order – leaving it at the election of the father to take up the extra time when he can fit it in. The child failed to spend two weekends and one week of the school holidays with him because of the contraventions. I will make Orders that provide for the child to spend an extra two weekends and an extra week of any of the shorter school holiday periods this year with the father at his election.
As for the expenses he incurred, the father deposed to a list of his expenses in his affidavit of evidence in chief. Those expenses included $274 for C’s return flights on the weekend of the first contravention, $274 for C’s return flights on the weekend of the third contravention, $616 for C’s return flights in the 2017 September holidays, the subject of the second contravention. They also included the amounts of $230, $274, $230, $274, and $616 for his own return flights for the three occasions on which I have found the orders were contravened. Those amounts total $2,788. I consider it appropriate to order the mother to pay the father that amount to compensate him for that expenditure when he did not get to spend time with C.
I know nothing about the mother’s financial circumstances, save that she is now running her own small hairdressing salon business and that she was in receipt of a grant of legal aid for the proceedings. Nevertheless, impecuniosity, even if it does exist, is no bar to a costs order being made against a person. The father had a completely reasonable expectation to collect C and take her back to Sydney with him on those three occasions. He spent all that money trying to ensure that happened. The mother did not meet her obligation to ensure it happened. I consider it completely reasonable to make an Order that she pays him that amount of money to compensate him.
As for his legal costs of the contravention proceedings, I will not make an Order that the mother pays them or any part of them. The mother was not wholly unsuccessful in the proceedings. She successfully defended the fourth and fifth alleged contraventions. With respect, I consider the fifth count should probably not have been brought or pressed, given the ambiguity of the wording of the primary Order alleged to have been breached. The father was partially successful in the proceedings but he is being compensated with make-up time for the time he missed out on with C and he is being compensated for the money he spent for nought. I consider that appropriate.
The child has been spending time with the father since Christmas 2017 and the indications are that, though the mother is still apparently troubled by that fact, it is likely to continue in the future – at least up until the trial when the competing parenting Orders proceedings will be heard and determined, if the parents are unable to resolve them in the meantime. That is positive for the child and the father. Additionally, the mother has now been found to have contravened Orders requiring her to ensure that C spends time with her father. Any future contravention will be considered against that determined background, potentially increasing the seriousness of the consequences for the mother of any future contravention found to have been committed by her. I take those matters into account in determining not to make an order that requires her to pay all or some of the father’s legal costs.
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 May 2019.
Associate:
Date: 14 May 2019
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