DELAINE & DELAINE

[2020] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELAINE & DELAINE [2020] FCCA 3069

Catchwords:
FAMILY LAW – Contravention – alleged contraventions not established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAF

Cases cited:

Sathra & Sathra [2012] FamCA 112

Applicant: MR DELAINE

Respondent: MS DELAINE

File Number: BRC 8858 of 2016

Judgment of: Judge Obradovic

Hearing date: 30 July 2020

Date of Last Submission: 13 August 2020

Delivered at: Parramatta

Delivered on: 13 November 2020

REPRESENTATION

Appearing for the Applicant: Mr Gittoes-Caesar

Solicitors for the Applicant: Coleman Greig Lawyers

Appearing for the Respondent: In person

ORDERS

1. The Application-Contravention filed 8 November 2019 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Delaine & Delaine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

BRC 8858 of 2016

MR DELAINE

Applicant

And

MS DELAINE

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application for Contravention filed by Mr Delaine (“the father”) on 8 November 2019. The respondent to the application is Ms Delaine (“the mother”).

2. In the contravention application, the father alleges four counts of contravention of parenting orders made by this Court by consent on 30 April 2019. The allegations of contravention relate to circumstances in which the parties’ youngest child, X born in 2010, did not spend time with the father at various junctures between July and October 2019.[1]

   [1] The parties have two other children the subject of the relevant orders, however they are not the subject of this Application for Contravention.

3. On 11 February 2020, the mother entered pleas of not guilty for all alleged contraventions. On that occasion the application was set down for hearing to commence on 30 July 2020.

4. At the hearing, the parties appeared by telephone. The father was represented by Mr Gittoes-Caesar and the mother was self-represented.

5. Both parties were required for cross examination.

The Law dealing with Contraventions

1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth).

2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:

   a)Preliminary matters, including definitions and a provision relating to the standard of proof (s70NAF): subdivision A;

   b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;

   c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;

   d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;

   e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;

   f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F

3. The meaning of “contravened an order” is set out in s70NAC of the Family Law Act1975 (Cth):

   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;

   …

   (Emphasis in original)

Relevant Orders

1. The parties have been involved in parenting proceedings since September 2016, when the father commenced proceedings seeking parenting orders. The matter was ultimately set down for final hearing on 29 and 30 April 2019.

2. On 30 April 2019 the parties invited the Court to make final parenting orders by consent as follows:

   a)That the mother have sole parental responsibility for major long-term issues involving the education of the children;

   b)That the mother and the father shall have equal shared parental responsibility with respect to medical decisions for the children;

   c)That the children live with the mother;

   d)That the Father spend time with the children, Y and Z[2]: 

   [2] Not the children subject of these contravention proceedings.

   i)in accordance with their wishes;

   e)That the father spend time with X in accordance with the following:

   4.2 That with respect to the child, X, on all occasions agreed upon by the parties but failing agreement:

   4.2.1. For three (3) visits following the date of these Orders, being the second weekend of the month, from 10am Saturday until 6pm Saturday, and from 10am Sunday until 5pm Sunday, such time to occur in the greater Sydney area;

   4.2.2. Following the expiration of the time set out in Order 4.2.1 above, for three (3) further visits to occur on the second weekend of each month, from 10am Saturday until 5pm Sunday, such time to occur in the greater Sydney area.

   4.2.3. Thereafter the expiration of the time set out in Order 4.2.1 above, and commencing with the first school holiday period following the 6th weekend visit, for the first week (that is, seven nights) of each NSW gazetted school holiday and with respect to such school holiday time:

   4.2.3.1The first two school holiday periods shall be spent by the Father with the child(ren) in the greater Sydney area;

   4.2.3.2Thereafter the school holiday periods shall be spent by the Father with the child(ren) in Queensland;

   4.2.3.3The first week, for the purposes of this Order, shall commence on the first Saturday after the cessation of school;

   4.2.4For Christmas in each odd numbered year, from 24 to 26 December, save that X will spend time with the mother from 10am to 2pm on 25 Dec 2019 with the Father to deliver and collect the child from B Street, Suburb C at the commencement and conclusion of such time;

First Alleged Contravention

On 13 July 2019 at 10am at McDonald’s, D Street, Suburb E the respondent without reasonable excuse, did not facilitate the applicant’s time with the child, X, in accordance with the Orders.

1. The father’s evidence is that he arrived at McDonald’s Suburb E for changeover at 9:50am. The father alleges that he was shortly met by X accompanied by the mother, the maternal grandmother and Z. He says to the Court that the maternal grandmother then informed him that “X will not be coming” and that they all walked away from the changeover location.

2. The father sent a text message to the mother at 9:51am stating that he would wait for X until 10am, otherwise that he would file a “breach of orders on Monday including costs”. The father says that he left McDonald’s Suburb E at 10am.

3. The mother’s evidence is that upon arriving at McDonald’s Suburb E for changeover, X, accompanied by his sister Z, went outside to the father. The mother says that her mother did not accompany the children, as alleged by the father.

4. The children then returned to the mother and informed her that X would not be going with the father that day. The mother says that she encouraged X to go back outside and “at least talk” with the father. When X went back outside at 10:01am the father had already departed McDonald’s Suburb E. The mother relies on a text message sent to the father at 10:01am stating that he “did not even wait until 10:01”.

5. Text messages between the mother and father on this occasion indicate that the mother advised the father that she brought the child to changeover and encouraged him to go to the father. The mother further stated that the father had done nothing to encourage the child to go with him.

6. In cross-examination the father conceded that X was at changeover at the correct time, that he had come out to talk to him and that he told him that he did not want to go with him. The father said that he spoke to X about what he wanted to do on the day and that he did not try to restrain him when he went back to the mother, rather than coming with him.

Second Alleged Contravention

On 14 July 2019 at 10am at McDonald’s, D Street, Suburb E the respondent without reasonable excuse, did not facilitate the applicant’s time with the child, X, in accordance with the Orders.

1. The father’s evidence is that he arrived at McDonald’s Suburb E for changeover before 10am. The father submits that X, Z and the maternal grandmother approached him and then the maternal grandmother speaking on behalf of X, informed him that X would not be spending the day with him. He alleges that after considerable encouragement from the maternal grandmother X confirmed that he did not want to spend the day with him. The father departed McDonald’s Suburb E shortly thereafter.

2. The mother’s evidence is that once the father arrived at McDonald’s Suburb E she said goodbye to X and again sent him outside to his father. She states that X went outside on his own, however returned to the mother informing her that he would not be going with the father that day.

3. The father said in cross examination, that he attempted to encourage X to come with him “by talking to him about what he wanted to do that day”, however X returned back to his mother. He also says that on 14 July 2020, X was not “released to his care” as he was standing beside the maternal grandmother.

4. The mother, again, denies that the maternal grandmother was present during this interaction between the child and the father.

Third Alleged Contravention

On 14 September 2019 at 10am at Suburb E McDonald’s the respondent without reasonable excuse, did not facilitate the applicant’s time with the child, X, in accordance with the Orders.

1. The father’s evidence is that the mother invited the father to attend X’s sports game and that the changeover would take place at the playing fields after X’s game. The father states that he arrived at the playing fields before the game commenced, watched X warm up and then play. He claims that after the game concluded he was approached by X, who was accompanied by the maternal grandmother.

2. According to the father, X said that he would not be spending the day with the father as he has plans to celebrate the maternal grandmother’s birthday instead. The father relied on a text message sent at 9:50am to the mother stating that X is not spending the day with him because X was under the impression he had plans to celebrate the maternal grandmother’s birthday. The father claimed that he then waited for a reply from the mother at the playing fields for twenty minutes. After twenty minutes had passed and no reply had been received, the father then left.

3. The mother’s evidence is that there was an agreement between the father and the mother for the changeover to take place at the playing fields where X was playing. She states that after the game concluded, X approached her asking if he could go and meet the father early, to which she agreed. The mother alleges that she received the text message sent at 9:50am from the father stating that X is not spending the day with him. The mother submits that she and X had celebrated the maternal grandmother’s birthday the night previously and that they had no celebrations planned for that day.

Fourth Alleged Contravention

On 13 October 2019 at 10am at McDonald’s, D Street, Suburb E the respondent without reasonable excuse, did not facilitate the applicant’s time with the child, X, in accordance with the Orders.

1. The father’s evidence is that on 12 October 2019 he had taken X to Town F. The father stated that due to a miscommunication with the mother changeover occurred one hour later than the mother had requested. He alleges that on 13 October 2019 the maternal grandmother called the father to inform him that X won’t be spending time with him that day because the father had breached Order 4.2 made on 30 April 2019 by taking X outside the greater Sydney area. As a consequence the father did not spend time with X on 13 October 2019.

2. The mother’s evidence is that on 12 October 2019 X spent the day with the father and changeover occurred two hours later than the agreed time. The mother alleges that X was “extremely distressed” when he arrived home and that X had stated that he did not want to spend the following day with the father. The mother submits that she told X that it was not up to her and that it was a matter between X and the father. The mother further says that she was unaware that X contacted the father on 13 October 2019 to inform him that he would not be spending time with him that day. The mother claims that she encouraged X to accompany the maternal grandmother to the changeover location to meet the father, which he eventually did.

3. The mother and father have both annexed text messages and call logs in respect of this alleged contravention. The father did not eventually meet X at the agreed changeover location either to spend time with him or to hand over some of his belongings but rather thought it was best to return X’s belongings from the day prior “at the front door under the camera” as he did not want to make a scene.

4. The mother’s ultimate position is that the father makes no genuine effort to encourage X to spend time with him, particularly in circumstances where she has taken X, after much convincing and “bribery”, to the changeover location.

Determination:

1. On both 13 and 14 July 2019, the child was at the changeover location at the requisite time. On both occasions, the child communicated his reluctance to spend time with the father. On both occasions, the father left the changeover location without the child.

2. The fact is that X did not spend time with the father on either of those two occasions, however this does not ipso facto mean that the mother contravened the orders. The evidence does not establish that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order.

3. While the Court is well aware that it is not sufficient for a parent to say to a child “it’s your decision as to whether you want to go or not” when considering a parent’s obligation to comply with an order requiring a child to spend time with the other parent, this is not what happened in these two instances.

   The reason why the law may not look benevolently upon what the mother describes as her ‘precarious position’ is of course, founded in the fact that if children were able to determine whether they attended pursuant to an order which binds their parents to obligations in respect of them, then orders would never have any utility.[3]

   [3]  Sathra & Sathra [2012] FamCA 112 at [86] per Murphy J

4. The difficulty is that the father himself left without the child on each of the two occasions. There is no evidence that the mother left it up to X to decide whether he was going to spend time with the father or not, indeed, the evidence is that it was the father who decided to leave it up to X to make this decision.

5. Even with the father’s evidence as to the maternal grandmother’s involvement particularly on 14 July 2019, it is difficult how a third party’s actions can be visited upon the mother. The text messages from the maternal grandmother to the father indicate that the mother (and indeed the maternal grandmother) had encouraged X to spend time with the father on 14 July 2019.

6. Counts 1 and 2 are not established.  

7. In respect of 14 September 2019, there parties had agreed for changeover to occur at a place other than in accordance with the orders. As such, the alleged contravention cannot be made out (being an allegation that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order. The father, in any event, conceded that he spoke to the child and that the child again communicated to him that he did not want to go with the father. In those circumstances, the father did not press for X to go with him. The mother was not present.

8. Count 3 is not established.

9. Lastly, in respect of 13 October 2019. The orders were for the child to spend time with the father from Saturday overnight to Sunday. The father delivered the child back to the mother’s care on Saturday night (after he had taken the child to Town F contrary to the orders), and then alleged that the mother breached the orders by failing to ensure that the child spent time with the father from 10am on the following day. This cannot be a contravention of the orders as made, as the orders did not provide for the child to spend time with the father from 10am on that Sunday.

10. Count 4 is not established.

11. For all of the above reasons orders are made as set out at the forefront of these Reasons.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 13 November 2020