DESAI & DESAI
[2020] FCCA 2728
•2 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DESAI & DESAI | [2020] FCCA 2728 |
| Catchwords: FAMILY LAW – Contravention of parenting orders – nine counts of contravention pursued – whether the Mother had a reasonable excuse for admitted contraventions – four Counts proved without reasonable excuse – one Count proved with reasonable excuse – remaining Counts dismissed – where Final Hearing of the matter is listed in the coming month – no order for compensatory time – Mother to enter into a bond without surety. |
| Legislation: Family Law Act 1975, ss.60CC(2), 70NAC, 70NAF, 70NEA |
| Cases cited: Gaunt & Gaunt (1978) FLC 90-468 In the Marriage of O’Brien (1992) 16 Fam LR 723 Kelly & Kobelnek [1998] FamCA 296 |
| Applicant: | MR DESAI |
| Respondent: | MS DESAI |
| File Number: | MLC 5612 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 2 September 2020 |
| Date of Last Submission: | 2 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 2 October 2020 |
REPRESENTATION
| Advocate for the Applicant: | Ms Rothschild |
| Solicitors for the Applicant: | Elisa Rothschild Lawyer |
| Counsel for the Respondent: | Mr McCloskey |
| Solicitors for the Respondent: | Marcou & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms O’Connell |
| Solicitors for the Independent Children’s Lawyer: | Gordon Ainger Legal |
ORDERS
THE COURT DECLARES THAT:
Counts (5), (6), (7) and (9) as set out in these reasons for judgment dated 2 October 2020 are proved, with the Mother having contravened orders 16(c), 16(k) and 23 of the orders made on 13 August 2018 (‘Final Orders’) without reasonable excuse.
Count (2) as set out in these reasons for judgment dated 2 October 2020 is proved, with the Mother having contravened order 16(g) of the Final Orders, but that she had a reasonable excuse for doing so.
The Court is satisfied that no Court having jurisdiction under the Family Law Act 1975 (‘Act’) has previously determined that the Mother has, without reasonable excuse, contravened the Final Orders referred to in Declaration 1 above.
Subdivision E of Division 13A of Part VII of the Act applies to the contraventions referred to in Declaration 1 above.
THE COURT ORDERS THAT:
The Mother enter into a bond in accordance with s.70NEC of the Act, being a bond:
(a) for a period of 12 months commencing from the date of this order;
(b) to be of good behaviour; and
(c) to strictly comply with all orders made by the Federal Circuit Court or the Family Court of Australia.
Counts (1), (3), (4), and (8) as set out in these reasons for judgment dated 2 October 2020 are dismissed.
Pursuant to s.65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS:
A.Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
IT IS NOTED that publication of this judgment under the pseudonym Desai & Desai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5612 of 2018
| MR DESAI |
Applicant
And
| MS DESAI |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is a contravention application filed by the Applicant Father on 24 June 2019. In the application, the Father alleges that the Respondent Mother contravened final parenting orders made in the Family Court on 13 August 2018 (‘final orders’). The proceedings are brought pursuant to Division 13A of Part VII of the Family Law Act 1975 (‘Act’).
Background
The parties married in 2007 and separated on a final basis on 11 March 2018. There are two children of the relationship who are the subject of the proceedings between the parties. They are X born in 2009 (otherwise known as ‘X’) and Y born in 2014 (otherwise known as ‘Y’).
The Father made an application for parenting and property orders in the Family Court dated 22 May 2018. Final orders were made, by consent, with respect to both parenting and property matters on 13 August 2018 by Registrar Sudholz in the Family Court (‘final orders’). The final orders provided, relevantly for the purposes of the present application, as follows:
‘14. That the parties have equal shared parental responsibility for the children of the marriage namely X born in 2009 and Y born in 2014 (“the children”).
15. That the children live with the Wife.
16. That the children spend time with the Husband as follows:
(a) Commencing 18 August 2018 from 10am Saturday until 5pm Sunday and each alternate weekend thereafter;
(b) Each Thursday from conclusion of school (or 3.30pm if a non school day) until 8.30pm;
As and from the commencement of Term 4 2018, the following shall apply during the school terms:
(c) Each alternate weekend from conclusion of school Friday (or 3.30pm if a non school day) until commencement of school Monday morning (or if Monday is a non school day until 5.30pm that day);
(d) Each alternate Thursday from conclusion of school (or 3.30 pm if a non-school day) until commencement of school the following morning (or 5.30 pm if a non-school day);
(e) That as and from 12 months from date of these orders that the time in paragraph 16(d) shall occur each Thursday;
Special Occasions
(f) For half of each school term holiday in Term 1 and 2 and such half as agreed between the parties and in default of agreement the first half and changeover to commence from the conclusion of school and conclude at 5.30pm on the middle Saturday;
(g) For half the third term school holiday period which is to include the first or last four (4) days of the Dusehara Festival as agreed between the parties and in default of agreement the first half;
(h) For half of the long summer vacation on dates to be agreed and in default of agreement in one week blocks commencing on the first week of the vacation period;
(i) On Father’s Day weekend from 5.30pm Saturday until commencement of school Monday morning conditional upon the Wife having Mother’s Day weekend from 5.30pm Saturday until commencement of school Monday morning;
(j) For the first day of the Diwali Celebration in even numbered years and the second day of the Diwali Celebration in odd numbered years from 10am to 7.30pm;
(k) For the first day of the Ugaadi Festival each year conditional upon the Wife having the last two days.
(l) Such further and other times as agreed between the parties.
…
23. That each party shall inform the other of any medical treatment or injury received or sustained by either of the children when in their care.
24. Both parents shall authorise any health practitioner to discuss the children’s health treatment and requirements with the other parent.’
The Father filed a contravention application with respect to the final orders on 12 April 2019 (‘first contravention application’). That application was dismissed by a Registrar of this Court on 12 June 2019, and a costs order made against the Father.
Subsequent to the dismissal of the first contravention application, the Father filed a second contravention application, which is the application presently before me, on 24 June 2019 (‘application’). The application alleges 53 breaches of the final orders by the Mother.
The Father also filed a substantive application on 6 September 2019, seeking to re-agitate parenting matters between the parties. The hearing of that application is listed before her Honour Judge Boymal on
8 October 2020 with an estimated hearing time of 2 days.
On 7 October 2019, the application was listed for Directions before Registrar Riddiford, and the following orders were made:
‘1. The Contravention Application filed 24 June 2019 be adjourned for hearing before Judge McGuire ON A DATE TO BE FIXED in respect to the alleged breaches of orders that occurred on the following dates:
(a) 11 September 2018;
(b) 14 September 2018;
(c) 22 September 2018;
(d) 12 October 2018;
(e) 5 to 8 April 2019; and
(f) 23 April 2019.
2. The Applicant’s costs of this day be reserved.’
Since the making of these orders, the matter has been before this Court a number of times. It has been listed for hearing and adjourned on at least three occasions. It now comes before me for hearing so as to finalise the contravention proceedings before the substantive parenting maters are heard before Judge Boymal on 8 October 2020.
Contravention application
At the outset of the hearing, the Father’s representative indicated that the contraventions alleged to have occurred on 11 September 2018 and 23 April 2019 were no longer pressed. That leaves the following counts:
Count (1):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 16(c) of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
14/09/2018
3:30pm
Suburb B
Statement of the alleged contravention
The Respondent breached Order 16(c) of the Order of 13 August 2018 by failing to facilitate without reasonable excuse the children’s court ordered time with the Applicant on 14 September 2018 to 16 September 2018.
Count (2):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 16 of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
22/09/2018
Suburb B
Statement of the alleged contravention
The Respondent breached Order 16(g) of the Order of 13 August 2018 by failing to facilitate without reasonable excuse the children’s court ordered time with the Applicant on 22 September 2018.
Pursuant to Order 16(g), the children are to spend half of the Term 3 holidays with the Applicant upon agreement between the parties. In default of agreement, Order 16(g) states the children are to spend the first half of the Term 3 holidays with the Applicant.
The Respondent failed to facilitate the children spending the first half of the Term 3 holidays with the Applicant.
Count (3):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 23 of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
22/09/2018
Suburb B
Statement of the alleged contravention
The Respondent breached Order 23 of the Order of 18 August 2018 by failing to inform the Applicant of any medical treatment of injury sustained by the children when in her care.
Count (4):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 24 of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
22/09/2018
Suburb B
Statement of the alleged contravention
The Respondent breached Order 24 of the Order of 18 August 2018 by failing to authorise any health practitioner to discuss the children’s health treatments and requirements with the Applicant.
Count (5):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 16(c) of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
12/10/2018
3.30pm
Suburb B
Statement of the alleged contravention
The Respondent breached Order 16(c) of the Order of 18 August 2018 by failing to facilitate without reasonable excuse the children’s court ordered time spent with the Applicant on
12 October 2019 to 15 October 2018. (error in original)
Count (6):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 16(k) of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
05/04/2019
1.00pm
C School, Suburb D
Statement of the alleged contravention
The Respondent breached Order 16(k) of the Order of 18 August 2018 by failing to facilitate the children’s court ordered time spent with the Applicant on the first day of the Ugaadi Festival.
The Respondent breached Order 16(k) of the Order of 18 August 2018 by failing to facilitate the children’s court ordered time spent with the Applicant on the first day of the Ugaadi Festival which started on 5 April 2019. (error in original)
Count (7):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 23 of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
05/04/2019
2.00pm
Suburb B
Statement of the alleged contravention
The Respondent breached Order 23 of the Order of 18 August 2018 by failing without reasonable excuse to inform the Applicant of the medical treatment or injury received or sustained by the children whilst in her care.
Count (8):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 24 of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
05/04/2019
2.00pm
Suburb B
Statement of the alleged contravention
The Respondent breached Order 24 of the Order of 18 August 2018 by failing without reasonable excuse to authorise the children’s health practitioner to discuss the children’s health treatment and requirements with the Applicant.
Count (9):
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
Order 16(c) of the Order dated 13 August 2018
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
05/04/2019
3.30pm
Suburb E Shopping Centre
Statement of the alleged contravention
The Respondent breached Order 16(c) of the Order of 18 August 2018 by failing without reasonable excuse to facilitate the children’s court ordered spend time with the Applicant on 5 to 8 April 2020.
The Law
Contravention proceedings are commenced pursuant to Division 13A of Part VII of the Act.
Section 70NAC of the Act defines what contravened an order means:
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.
In contravention proceedings, the general obligations created by parenting orders need to be considered. Relevantly, section 65N of the Act provides as follows:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefitting from spending time with each other under the order.
Meaning of reasonable excuse
Where the Court is satisfied that a respondent has contravened orders, the Court is then required to consider whether the respondent had a reasonable excuse for doing so.
Reasonable excuse is defined in section 70NAE of the Act as follows:
(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 are not limited to, the circumstances set out in subsections (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)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
As to the defence available under section 70NAE(5) of the Act (which is in similar terms to what was available under section 112AC then) Smithers J in In the Marriage of O’Brien (1992) 16 Fam LR 723 said:
‘…it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of a child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to the order was necessary to protect the health and safety of a person. It is not a question as to whether the view of the custodial parent or the view of the custodial parent on reasonable grounds that the carrying out of the access order might not be in the best interest of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.’
The reasonableness of a respondent’s conduct must be judged by reference to an objective standard. It is not sufficient that a respondent merely thinks that the orders are wrong or that time with the other parent is not in the child’s best interests.[1] In the unreported decision of Kelly & Kobelnek [1998] FamCA 296 [2], Hannon J expressed the test as follows:
‘In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the Mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.’
[1] see Gaunt & Gaunt (1978) FLC 90-468 at page 77,398
[2] Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia at Hobart delivered 10 March 1998
Standard of proof
The provisions of section 70NAF of the Act set out the relevant provisions dealing with the standard of proof required for determining contravention applications. That section provides:
(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
…
The approach to contravention proceedings
Proceedings in which it is asserted that a party has contravened orders of a Court are serious. A respondent who is found to have contravened Court orders faces a range of sanctions including, ultimately, fines and the prospect of imprisonment. In those circumstances, a proceeding in which a contravention of Court orders is alleged is different to what might be described as ordinary civil litigation, or litigation concerning parenting arrangements. A respondent to a contravention application is entitled to understand clearly the case against him or her. Anything less, in my view, risks a respondent suffering prejudice as well as a lack of procedural fairness.
Consideration
At the commencement of the hearing, pursuant to rule 25B.04 of the Federal Circuit Court Rules 2001 (‘Rules’), I informed the Mother of the allegations against her. I then asked her whether she admitted or denied the allegations.
The evidence said to support the conduct giving rise to the contraventions was set out in an affidavit of the Father affirmed 21 June 2019. The Mother sought to rely on her affidavit filed on 2 October 2019, and the evidence that she gave in the witness box. Both parties were cross examined.
I now propose to deal with each of the counts of contravention.
Count (1)
The allegation concerns a failure by the Mother to make the children available for time with the Father in the period 14 September 2018 to 16 September 2018. The order allegedly contravened is order 16(c) of the final orders. The Mother denied the alleged contravention.
The final parenting orders were made on 13 August 2018. Order 16(c) is to operate ‘as and from the commencement of Term 4 2018’. The reference to ‘Term 4 2018’ is a reference to the school term.
It is a matter of public record that school Term 4 commenced in Victoria on Monday, 8 October 2018. The Mother could not have contravened order 16(c). It was not in operation at the time of the alleged breach.
The Father’s representative sought to rectify this at the hearing by submitting that, alternatively, the Mother had contravened order 16(a). I will not entertain that submission. As noted earlier, applications for a contravention of Court orders are serious matters. Applicants commencing contravention applications in the ordinary course have plenty of time to consider and formulate the alleged charge or contravention. Respondents to such applications face a range of penalties including, in the most serious of cases, terms of imprisonment. Procedural fairness at a minimum dictates that respondents come to Court completely aware of the charge against them. Charges or alleged contraventions must not be amended on the run. Doing so would be seriously prejudicial to a respondent, given the nature of such proceedings. The Court therefore will not permit any attempt to vary the alleged contravention.
For the above reasons, Count (1) is dismissed.
Count (2)
This Count relates to an alleged failure by the Mother to make the children available to spend time with the Father for the first half of the third term school holiday period as required by order 16(g) of the final orders. The Mother denied the alleged contravention.
Counsel for the Mother contended that order 16(g) only commenced to operate from Term 4 2018. In that respect, he relied on the heading that is found between Order 16(b) and 16(c) of the final orders. The Mother gave evidence that this was her understanding of the orders and says that in any event, the children spent time with the Father pursuant to order 16(a).
I do not accept the submission of the Mother in relation to the operation of order 16(g). The heading that is relied on by Counsel for the Mother delineates between regular time spend arrangements between the Children and the Father from the making of the orders until the commencement of Term 4 2018. That clause does not deal with time to be spent on school holidays. School holiday time is dealt with separately under the heading ‘Special Occasions’ that precedes order 16(f). Consequently, I regard order 16(g) as being operative at the relevant time. The submission that it was not operative must be rejected.
While I have rejected the interpretation of the order advanced by the Mother, it is easy enough to see how the confusion arose. The manner in which the order is drafted is somewhat unclear. The Mother gave evidence as to her understanding of the operation of the order. Her evidence as to her understanding of the order was not seriously challenged or undermined during cross examination.
In the circumstances above, I find that the Mother has contravened the order. The contravention is proved. Given the manner in which the order is drafted however, I am of the view that the Mother ought to be excused in respect of the contravention. She had a reasonable excuse as contemplated by section 70NAE(2). She did not understand the obligations imposed by the order, given the manner in which it was drafted. I intend to explain to the Mother the operation of these orders at the time I deliver judgment.
Count (3)
Count 3 is an allegation that the Mother failed to inform the Father of any medical treatment or injury sustained by the children when in her care on 22 September 2018 as required by order 23 of the final orders. The Mother denied the alleged contravention.
There are two obligations embedded within order 23. The first is for each party to inform the other of any medical treatment received by the children. The second obligation is to inform the other party of any injury sustained by either of the children.
The Mother has not contravened the second aspect of order 23 referred to above. The Father’s evidence in his affidavit is that the Mother ‘told me that the children were unwell’. In the language of the order, the Father therefore admits that the Mother told him of the ‘injury… sustained’ by the children.
As to the first aspect of the obligation under order 23, I was not taken to, nor am I able to find, any evidence that suggests the children were, in fact, treated by a medical practitioner on 22 September 2018 or that there was a failure to notify that arose on that date. The Father’s affidavit is completely silent as to what medical treatment he says took place on 22 September 2018. The Mother denied in her evidence that any ‘tonsils assessment document’ existed or that a letter from a medical practitioner existed. Further, to the extent the Father relies on the exhibits to his affidavit to prove the contravention on 22 September 2018, Exhibit ‘PA-05’ relates to the alleged contravention on 20 September 2018 (which is not before the Court), and not a contravention on 22 September 2018.
In short, the Father has failed to demonstrate on the evidence that the Mother breached order 23 on 22 September 2018. This Count must be dismissed.
Count (4)
This Count relates to an alleged failure by the Mother to authorise any health practitioner to discuss the children’s health treatments and requirements with the Father on 22 September 2018 pursuant to order 24 of the final orders. The Mother denied the alleged contravention.
The evidence of the Father in support of the alleged contravention is scant. The Father at paragraph 10 of his affidavit states as follows: ‘I note that the Respondent told me that the children were unwell, but she failed to inform me of any medical treatment or injury received or sustained by the children nor did she authorise any health practitioner to discuss the children’s health treatments and requirements with me’.
In my view, the evidence does not support a finding that the Mother contravened order 24. For the reasons articulated under Count 3, there is no evidence that the children were treated by, or even seen by, any health practitioner on 22 September 2018. The Mother cannot be said to have failed to authorise a discussion with a health practitioner, when the evidence does not support a finding that a health practitioner was engaged on that date and further, when the evidence does not identify which health practitioner was engaged, or indeed when. There is also no evidence as to the Father’s attempts to speak with a health practitioner, or any evidence of him being rebuffed by that practitioner because the Mother had failed to authorise a discussion.
For the above reasons, Count (4) must be dismissed.
Count (5)
This alleged contravention relates to a failure by the Mother to make the children available to spend time with the Father as required by order 16(c) of the final orders. When this allegation was read to the Mother, she admitted that she withheld the children, but said she had a reasonable excuse.
The practical effect of order 16(c) was that both children were required to be with the Father from the conclusion of school on Friday, or 3:30pm if Friday was a non-school day. The evidence before the Court is that the children were not delivered to the Father at that time. Rather, the evidence indicates that the Mother ultimately delivered X to the Father the following day and that Y did not see her Father at all that weekend.
The Mother asserts that she had a reasonable excuse for withholding the children. She says that Y had an upset stomach and that she felt it better that she looked after her given the Father was due to attend a Cultural event with the children.
There are a number of difficulties with the Mother’s evidence. First, while the Mother’s evidence may explain her decision to withhold Y, it does not explain why she withheld X from the Father from after school or 3.30pm on Friday 12 October 2018, and did not deliver X until the Saturday morning. No excuse is proffered in respect of the Mother’s decision to withhold X.
Second, the Court has before it a text message sent by the Mother to the Father at 12.19pm on 12 October 2018. That text message proffers as the first excuse for withholding the children, an assertion that the children do not have enough spare clothes with them. Two things may be said about this. First, whether the children had enough spare clothes is a matter squarely within the control of the Mother given that the children live with her and spend time with the Father. Second, Y’s upset stomach is offered as a secondary excuse.
Third, there does not appear to have been any attempt by the Mother to monitor Y’s condition and to make Y available if her health improved. The Mother has simply asserted that the ill-health will last the entire weekend without giving any consideration as to whether it was appropriate at some later time to provide Y to the Father.
When all of the above matters are considered, I find Count (5) proved. I also find that the Mother did not have a reasonable excuse for withholding the children from the Father.
Count (6)
This contravention relates to the allegation that the Mother failed to make the children available to spend time with the Father on the first day of the Ugaadi Festival on 5 April 2019, pursuant to order 16(k) of the final orders. The evidence in support of this contravention is contained within the Father’s affidavit and also a text message annexed to the Affidavit. The Mother admits that she failed to provide the children as required by order 16(k), but says she has a reasonable excuse.
In respect of this Count, the Mother gave evidence that on 5 April 2019, she attended a Court hearing. The Father was, as I understand it, in the Magistrates Court facing charges that related to his behaviour towards the Mother. The Mother says the charges related to threats made by the Father to kill her. The Mother’s evidence is that she read out her victim impact statement in Court. She says she felt that she and the children were at ‘heightened risk’, and that she feared for their safety, because the Magistrate gave an indication as to the sentence the Father might receive. Fearing the Father’s reaction, she withheld the children.
The Mother’s defence therefore relies on section 70NAE(5). She contends that she believed on reasonable grounds that not allowing the children to spend time with the Father was necessary to protect their health or safety.
I do not accept the Mother’s evidence in the witness box that she withheld the children because she felt at ‘heightened risk’ following the Magistrates Court proceeding. The reasons for this are as follows. First, there is evidence of text message communication between the Father and the Mother on 5 April 2019. The fact that the Mother was texting the Father is not consistent with the Mother fearing an emotional reaction from the Father. Further, the content of the text message communication does not disclose any fear that the Mother had of the Father on that day. Finally, and significantly, the Mother’s text message, reproduced at page 92 of the Court Book, requests the Father to ‘please understand’ that time not proceed because one of the children ‘might be going through ‘ladies’s phase’ (sic). I do not know to what ‘ladies phase’ refers. It was not tested during the hearing. Plainly, however, it is being used as the reason for withholding the children, and plainly it does not speak to a fear held by the Mother or the children.
For the above reasons, I find that the Mother did not have a reasonable excuse for withholding the children as contemplated by section 70NAE(5). Count (6) is proved.
Count (7)
This alleged contravention relates to a failure by the Mother on 5 April 2019 to inform the Father of medical treatment or injury received or sustained by the children, as required by order 23 of the final orders. The Mother admitted the alleged conduct, but said she had a reasonable excuse.
I have commented earlier in these reasons on the structure of, and obligations contained within, order 23 and I adopt that reasoning here.
There are a number of difficulties with the evidence in relation to the alleged contravention. The Mother admitted the contravention at the start of the proceeding when it was read to her. Yet there is no evidence from her in relation to what occurred on the date specified in the allegation, and more importantly, what her reasonable excuse was.
There are then the issues with the Father’s evidence.
Any submission that the Mother failed to inform the Father of the illness or ‘injury..sustained’ by the children fails on the Father’s own evidence. He says in his affidavit that the Mother informed him that one of the children ‘has been down with abdominal pain last couple of days’. The text message that he has attached to his affidavit confirms this fact. He therefore clearly knew that the children were ill, or injured.
There is then the claim that the Mother failed to inform the Father of medical treatment received. I was not taken to, and am unable to identify, any material which indicates that the children received medical treatment on 5 April 2018. The evidence of the Father fails to identify what treatment was said to have been administered by the medical practitioner in respect of which he complains the Mother failed to inform him.
Ultimately, the Mother has admitted the contravention. There is not specific evidence from her, however, as to what reasonable excuse she had for contravening order 23 of the final orders on 5 April 2019. In those circumstances, the contravention is proved without reasonable excuse.
Count (8)
This count concerns an alleged contravention that the Mother on 5 April 2019 failed to authorise the children’s health practitioner to discuss the children’s health treatment with the Father, as required by order 24 of the final orders. The Mother denied the alleged contravention.
In my view, the evidence does not support a finding that the Mother contravened order 24 on 5 April 2019. The evidence in support of this contravention is scant to non-existent. Unlike the contravention under Count (7), the Mother has denied alleged contravention. There is no evidence that a medical practitioner attended to the children on 5 April 2019. The Mother cannot be said to have failed to authorise a discussion with a health practitioner, when the evidence does not support a finding that a health practitioner was engaged on that date and further, when the evidence does not identify which health practitioner was engaged, or indeed when. There is also no evidence as to the Father’s attempts to speak with a health practitioner, or any evidence of him being rebuffed by that practitioner because the Mother had failed to authorise a discussion.
To this may be added the following. The Father annexed to his affidavit a letter he sent to the Mother on 7 April 2019. In that letter, he raises a number of complaints about the Mother’s compliance with orders, including his complaints that the Mother has not permitted time to occur for medical reasons relating to the children. In that letter, he says ‘I am always constantly in touch with the doctor, and I have been told that our children were not treated for any illness in the past 6 months’. The Father cannot on the one hand claim he has not been authorised to speak to the doctor, but on the other hand state that he is ‘constantly in touch with the doctor’.
For all of the above reasons, Count (8) must be dismissed.
Count (9)
This Count concerns an allegation that the Mother contravened order 16(c) of the final orders by failing to make the children available to spend time with the Father on the weekend of 5 – 8 April 2019. The Mother admitted the alleged conduct, but said she had a reasonable excuse.
This contravention overlaps with the contravention contained in Count (6). I was not addressed on the overlap by the Father’s representative or Counsel for the Mother. The Mother’s conduct in withholding the children on 5 April 2019 led to contraventions of two separate orders.
The Mother relies on the same defence under Count (9) that she relied on under Count (6). Insofar as she does so, I rely upon my reasoning given under Count (6). I do not accept the Mother’s excuse for withholding the children from the Father on 5 April 2019, or the days that followed. The Mother did not have a reasonable excuse as contemplated by section 70NAE(5) of the Act.
Accordingly, the contravention within this Count is proved. The Mother does not have a reasonable excuse for the contravention.
Penalty
I have found Count (2) proved, but that the Mother had a reasonable excuse for the contravention. I have found Counts (5), (6), (7) and (9) proved and found that the Mother did not have a reasonable excuse for those contraventions. I have dismissed the alleged contraventions in Counts (1), (3), (4) and (8).
This is a matter to which Subdivision E of Division 13A of the Act applies. The state of the evidence before me is that section 70NEA(1) and (2) are satisfied. Accordingly, the Court may do any of the things specified in section 70NEB of the Act.
Some of the Counts that have been proved and for which the Mother does not have a reasonable excuse, have resulted in, among other things, the Father not spending time with the children. That being the case, the Court is required by the Act to consider making an order to compensate the Father for the time that he did not spend with the children as a result of the contraventions.
I have considered whether it is desirable to make an order compensating the Father for time that he did not spend with children. I decline to do so for two reasons. First, the Father did not seek such an order. Second, there are existing and open parenting proceedings before this Court which are scheduled to be heard at trial next week. In circumstances where the existing parenting orders and arrangements will be subject to some scrutiny, it is appropriate to leave the broader question of spend time arrangements to the Judge dealing with those applications.
The Father seeks that the Court require the Mother to enter into a bond for 12 months. I regard that as an appropriate outcome in this case. The Mother has repeatedly breached orders of this Court. She has done so in circumstances where she does not have a reasonable excuse. The Mother must accept that she needs to comply with orders of this Court. It will be a condition of the bond, among other things, that the Mother be of good behaviour and comply with all existing parenting orders including any orders made by the Federal Circuit Court of Australia in the future. I will not make an order for surety in circumstances where I was not taken to any evidence concerning the financial capacity of these parties.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 2 October 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Breach
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Remedies
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Jurisdiction
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Procedural Fairness
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