Diani and Diani (No.2)
[2019] FCCA 568
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIANI & DIANI (No.2) | [2019] FCCA 568 |
| Catchwords: FAMILY LAW – Contravention – whether the father has contravened orders made on 18 March 2015 – if contraventions proven, what the penalty should be. |
| Legislation: Family Law Act 1975, ss.65N, 70NAC, 70NAD, 70NAE, 70NEB, 70NECA, 70NFA, 70NFB Federal Circuit Court Rules2001, r.25B.02(2)(a) |
| Cases cited: Stamp & Stamp [2014] FCCA 1269 |
| Applicant: | MS DIANI |
| Respondent: | MR DIANI |
| File Number: | MLC 5627 of 2007 |
| Judgment of: | Judge Small |
| Hearing date: | 16 March 2018 |
| Date of Last Submission: | 16 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | None |
ORDERS
UPON THE COURT FINDING THAT:
On 20 June 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 1 July 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 19 August 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 26 June 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 18 September 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 24 June 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 16 September 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 23 June 2017, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
It has not been proven that on 17 November 2017, the father contravened paragraph 5(d) of the Final Orders made 18 March 2015.
THE COURT ORDERS THAT:
Within 14 days of the date of these Orders, the father shall enrol in and attend an approved Post-Separation Parenting Course and shall provide to the mother a certificate of completion at the end of that course.
Paragraph 5(e)(ii) of the Orders of 18 March 2015 shall be varied to read:
(ii) the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence at the conclusion of school on the last day of the school term.
Paragraph 20 of the Orders of 18 March shall be varied to read:
That the parties maintain a communications book for the sole purpose of providing to one another any appropriate information as to the children’s welfare, health or progress, and each party shall enter such messages in the said book, sign it, and return it to the other party at the conclusion of any time during which the children are in their care.
IT IS NOTED that publication of this judgment under the pseudonym Diani & Diani (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5627 of 2007
| MS DIANI |
Applicant
And
| MR DIANI |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings issued by the mother, Ms Diani or “the mother”), against the father, Mr Diani or “the father”) in Applications Contravention filed on 24 July 2017 and on 16 November 2017.
The orders alleged to have been contravened are parenting orders in relation to the parties’ children [X] born … 2001 (“[X]”) and [Y] born … 2004 (“[Y]”).
Those orders were made by consent before Judge Baker on 18 March 2015 (“the Final Orders”).
Background
The mother was born on … 1967 and is 51 years old.
The father was born on … 1972 and is 46 years old.
The parties commenced cohabitation in … 1996, were married in … 1998, separated in November 2005 and divorced in August 2007.
[X] and [Y] are the only children of the marriage.
[X] has not spent regular time with his mother pursuant to the Final Orders since late 2015, while [Y] does spend that time with Ms Diani.
The parties, both of whom have repartnered, have been engaged in almost continuous litigation about the children’s care since 2006.
Procedural History
The mother filed a Contravention Application on 24 July 2017 alleging multiple contraventions by the father of the Final Orders made by consent before Judge Baker on 18 March 2015 (“the Final Orders”).
On 16 November 2017 the mother filed a second Contravention Application which alleged the father had further contravened the Final Orders.
The Final Hearing of those two Applications commenced on 16 March 2018. Both the Mother and Father were self-represented. They were the only witnesses.
Following the conclusion of evidence and submissions on 16 March 2018, I reserved my decision.
The Law
The law in relation to contraventions is found in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Sections 70NAC and 70NAD of the Act set out the meaning of what it is to contravene an order as follows:
70NAC Meaning of contravened an order
A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; 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.
(Note omitted)
70NAD Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(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 section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
The orders alleged to have been contravened in this case are parenting orders which deal with “spend time” arrangements.
Therefore those orders are taken to include the requirements of s.65N of the Act.
Section 65N states as follows:
65N(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.
65N(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 from benefiting from spending time with each other under the order .
The legislation also provides for the court to be satisfied that a person has contravened an order, but to find that he or she had “a reasonable excuse” for doing so, that finding resulting in either exoneration of the person, or further orders being made.
That is, an Applicant in Contravention proceedings must prove not only that an order has been contravened, but that the Respondent to the Application has contravened the order without a reasonable excuse.
The meaning of “reasonable excuse” is set out in s.70NAE of the Act as follows:
70NAE(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).
70NAE(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.
70NAE(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 the 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).
70NAE(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 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).
Section 70NAE (6) and (7) are not relevant in these proceedings.
For the benefit of the parties, the test for the “reasonableness” of a person’s excuse is that of a “reasonable person in the street”, and it is not a value judgment of a reasonable Judge or legal professional.[1]
[1] Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
The court’s primary focus when dealing with contravention applications is to ensure future compliance with Court orders.[2]
[2] McClintock & Levier [2009] FamCAFC 62 [72]
The onus of proving the facts of a contravention lies with the Applicant, that is, with Ms Diani.
However if the facts are proven, the onus then moves to Mr Diani, as the Respondent, to show, on the balance of probabilities, that he had a reasonable excuse for the contravention.
So, if I find, as a matter of fact, that Mr Diani has contravened any of the Final Orders as alleged, he must prove to the Court, on the balance of probabilities, either that he did not understand the obligations imposed on him by the Final Orders, or that the contraventions were necessary in order to protect the health or safety of the children and/or him.
Most cases of this kind involve allegations that a resident parent has failed to make children available for court-ordered time with the other parent, and there is much case law covering those circumstances[3].
[3] That law is set out in some detail in Stamp & Stamp [2014] FCCA 1269.
This case is slightly different, in that the allegations are not all of that nature.
The Evidence
The first Application filed by the mother on 24 July 2017 contained five counts of alleged breaches of paragraph 5(c) and 15 counts of alleged breaches of paragraph 20 of the Final Orders.
At trial, I asked her to choose three of those counts and she did so, choosing to agitate the alleged breaches of paragraph 20 on 10 June, 1 July and 19 August 2016.
In her second Application filed 16 November 2017, the mother alleges unquantified numbers of breaches of paragraphs 2, 5(c), (d), (j) and (k), 19(a), (b) and (c), and paragraph 20 of the Final Orders, stating that these breaches occurred at on “various” dates, at “various” times” and at “various” places.
I dismissed all but two of those counts - the ones remaining being in relation to an alleged breach of paragraph 5(c) and (d) - as being too vague on the first day of trial.
I will now deal with each remaining count in turn.
Count 1: that on 10 June 2016, 1 July 2016 and 19 August 2016 the father without reasonable excuse did not write any message to the mother in the communications book in contravention of paragraph 20 of the Final Orders of 18 March 2015 (“the Final Orders”).
Paragraph 20 of the Final Orders (“paragraph 20”) reads:
20. That the parties maintain a communications book for the sole purpose of providing to one another any appropriate information as to the children’s welfare, health or progress, and each party sign the said book and return it to the other party at the conclusion of any time during which the children are in their care.
Count 1: Allegation 1: 10 June 2016
The breach alleged to have occurred on 10 June 2016 is that Mr Diani failed to write a communication note in the parties’ communication book informing Ms Diani that their son [X] would be attending a school camp which was partly to occur during the time the children were to be in her care.
When asked how he responded to this count at trial, Mr Diani said:
Your Honour, specifically - I can’t remember, because it was nearly two years ago. But I’m sure it’s, probably, true, because I haven’t always written in the communications book.
On that evidence I find that the facts of the Allegation 1 are proven on the balance of probabilities.
That is, I am satisfied that Mr Diani did not provide a communication note to Ms Diani in relation to the school camp that was partly to occur during the children’s time with the mother.
However, Mr Diani claims that he had a reasonable excuse for the breach.
Mr Diani claims that paragraph 20 of the Final Orders of 18 March 2015 is unclear.
He says that the order does not compel him to write a communication note, and that he only writes notes when there is some piece of information he wishes to convey about the children. His evidence is that he had not felt that it was critically important to write a message about the upcoming school camp on 10 June 2016.
While I made comments at trial to the effect that I thought at that time that paragraph 20 merely designates the communications book as the means by which the parties are to communicate, a closer reading reveals that the wording of paragraph 20 is not, I think, unclear.
It requires the parties to maintain a communications book whose “sole purpose” is for the parties to provide to each other “appropriate information as to the children’s welfare, health or progress”.
The fact that [X] was to attend a school camp is, I find, an “appropriate” piece of information “as to the children’s welfare, health or progress” for Mr Diani to have imparted to Ms Diani. That is especially so when the time for the school camp overlapped with time when the Final Orders provided for the children to be in her care.
In those circumstances, I do not accept that Mr Diani had a reasonable excuse for his breach of paragraph 20 on 10 June 2016, and that therefore, Allegation 1 of Count 1 is proven.
Count 1: Allegation 2: 1 July 2016
The alleged breach on 1 July 2016 related to Mr Diani unilaterally deciding to have [X] fitted with braces without informing Ms Diani.
I note that the Final Orders provide for Mr Diani to have sole parental responsibility for the children, but that those Orders require him to consult with Ms Diani when he is considering making an important decision in relation to the children. However, there is no application on foot that Mr Diani be dealt with for failing to consult with Ms Diani about [X]’s braces per se, but only that he failed to write a message about it in the communications book.
At trial, Ms Diani was insistent that paragraph 20 places an onus on Mr Diani to communicate to her about [X] wearing braces, and Mr Diani was adamant that [X] was of an age where he was able to communicate this to Ms Diani directly without the need for the communications book. He did not deny having failed to write a message about the braces in the communications book.
I am therefore satisfied, on the balance of probabilities, that Mr Diani failed to write in the communication book on 19 August 2016.
Mr Diani claims to have the same reasonable excuse as the previous Allegation – that is, it is Mr Diani’s interpretation of the order that it does not compel him to write a note in the communication book unless he chooses to do so.
I have already found that paragraph 20 is not unclear and that Mr Diani is obliged to write in it any “appropriate” information about the children’s “welfare, health and progress”. The decision for [X] to wear braces is certainly such a decision, and again, notwithstanding that Mr Diani has sole parental responsibility for the children, Ms Diani is entitled to expect that [X]’s father, and not [X] himself, will communicate that information to her.
It may be true that [X], who turns 18 on 24 September 2018, and who was 15 at the time of the alleged breach, was capable of telling his mother about his braces, but paragraph 20 obliges Mr Diani to inform [X]’s mother of appropriate information through the communications book.
I am satisfied on the evidence that Mr Diani does not have a reasonable excuse for the breach of paragraph 20 on 1 July 2016 and therefore, Allegation 2 of Count 1 is proven.
Count 1: Allegation 3: 19 August 2016
The alleged breach that occurred on 19 August 2016 involved a situation where [X] was involved in an “incident” while in Melbourne on a school excursion or camp. 19 August 2016 was the next changeover time when the communications book was passed between the parents.
In her Affidavit sworn 21 and filed 24 July 2017, Ms Diani does not mention this alleged breach, either in the body of the Affidavit or in any of its seven annexures, most of which consist of email trails between her and Mr Diani.
At trial it became evident that Ms Diani had filed an Affidavit on 11 March 2018 which had not been placed on the Court’s physical file in time for me to have read it before the hearing.
That Affidavit, which I have now read, states the following at paragraph 61:
61. In the documentation subpoenaed from School A there is a Note List detailing information for [X]. The notes were written by Ms B the Year level Leader at School A and state in part:
16/8/16 12.45 Witness within City Week incident – police file attached for further information if needed. --- (sic) and [X] directly involved.
It was clear to the Court that Ms Diani had only learned of this “incident” upon perusing documents provided by School A, the children’s school, well after the fact.
The school had apparently contacted Mr Diani to check on [X] soon after the above note was entered on 16 August 2016, saying that Ms B had contacted the school counsellor to “check in with [X] to see how he is going, more to follow up just in case”.
The statement [X] made to police on 11 August 2016 is then set out as follows[4]:
[4] This statement was entered into evidence at trial as part of subpoenaed material provided by School A.
My name is [X] and my details are known to police.
… At around 10am, we were walking fast on …, having been in the mall. I was walking with --- (sic) a friend of mine. We heard a male come up behind us and said “do you want to fight?” To --- (sic) said “no” the male then said “okay, two v one”.
Without any warning, the male kicked me on my right leg. This hurt a lot, and it caused my knee to buckle, and I went down onto my back. I forced myself to get straight back up, as I thought that he might keep kicking me if I stayed down….(sic)
My leg is okay. I got really scared when he came up to us – really scared. I thought that he might pull a weapon.
At trial, Ms Diani put that evidence to Mr Diani.
Mr Diani’s response was that [X] was not injured, and it had not been “a big event” as [X] attended school the next day. He did not think the incident worthy of reporting to [X]’s mother.
On that evidence, I am satisfied that Mr Diani failed to write a communication note in relation to the incident on 19 August 2016.
Any incident that involves an assault on a child and the police being called is a “big event”, and I find it “appropriate” for [X]’s mother to expect to be informed of such incidents, even where, as in this case, the father has sole parental responsibility for the children.
Indeed, I find it extraordinary that [X]’s father did not think that incident serious enough to even inform his mother about it.
I therefore find that Mr Diani did contravene paragraph 20 on 1 August without a reasonable excuse and Allegation 3 of Count 1 is proven.
Mr Diani’s attitude to his responsibility as a parent, and particularly as a co-parent with Mr Diani, shows a contempt for [X]’s mother which was palpable on the day of trial.
Count 2: that at 4:30 p.m. on 26 June 2015, 18 September 2015, 24 June 2016, 16 September 2016 and 23 June 2017, the father, without reasonable excuse, refused to provide the children for time with the mother in contravention of paragraph 5(c) of the Final Orders.
Paragraph 5(c) of the Final Orders reads:
5. That the children spend time with the wife as follows:
(c) commencing 17 April 2015 and each alternate week thereafter from 4:30pm on Friday to 5pm on Sunday, such time to be extended to commence from 5pm on the eve of any pupil-free day or public holiday *or to conclude at 5pm if the Monday following that weekend is a pupil free day or public holiday*[5];
[5] Emphasis in the original.
Count 2: Allegation 1: 26 June 2015
It is alleged that Mr Diani withheld the children from spending time with their mother at 4:30 p.m. on Friday 26 June 2015.
Mr Diani’s response to the allegation is that he did not withhold the children on 26 June 2015 as he was not obliged to provide them until 27 June 2015.
26 June 2015 was apparently last day of Term 2 of the school year.
I note that paragraph 9 of the Final Orders states as follows:
That the time referred to in paragraphs 5(a) to (d) hereof be suspended during all school holiday periods and recommence after the relevant school holiday period calculated as if the school holidays had not intervened.
Further, paragraph 5(e) of the final orders provides for the mother to spend time with the children:
(e)for one half of all school term vacations and one half of the long summer vacation with the Wife to spend:
ii)the first half of the school term holidays in the 2015 school year and each alternate year thereafter and for the second half of the long summer 2015/2016 holidays and each alternate year;
iii)the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence on the Saturday after the conclusion of the school term[6];
[6] Emphasis added.
Therefore, if the school term holidays were deemed to commence on the Saturday after the conclusion of the school term, that would have been when paragraph 5(c) of the orders suspended. That is, the ordinary fortnightly time provided for in paragraph 5(c) would still have been relevant on Friday, 26 June 2015. If that day were the ordinary fortnightly time for the children to spend with Ms Diani, they should have been provided to her at 4:30 p.m. on that afternoon.
The ordinary weekend time would then have suspended on the next day, Saturday 27 June 2015, and Ms Diani would have spent time with the children for the first half of the school holidays pursuant to paragraph 5(e).
It is difficult to believe that the parties intended for that anomaly to exist in the orders, particularly in circumstances where their mutual animosity was, and is, so strong.
Ms Diani believed that her time with the children was to begin at 4:30p.m. on Friday, 26 June 2015.
Mr Diani believed that Ms Diani’s time with the children was to begin at midday on Saturday, 27 June 2015.
In my view, both parties were correct, as the Final Orders provide for both times.
In those circumstances, where Mr Diani genuinely believed that he was not obliged to provide the children for holiday time with their mother until Saturday, 27 June 15, I find that while he did contravene paragraph 5(c) of the Final Orders at 4:30 p.m. on Friday, 26 June 2015, he had a reasonable excuse under s.70NAE(2) of the Act.
Count 2: Allegation 2: 18 September 2015
18 September 2015 was a Friday, and was the final day of Term 3 of the 2015 school year.
In paragraph 24 of her affidavit sworn 21 July and filed 24 July 2017, Ms Diani sets out email correspondence between the parties in the week before 18 September 2015 which simply repeats the parties’ positions in relation to school holiday time provided for in the Final Orders.
As the issues raised in this Allegation are almost identical to those in the previous Allegation, I find that Mr Diani did contravene paragraph 5(c) of the final orders on 18 September 2015, but that he had a reasonable excuse under s.70NAE(2) of the Act.
Count 2: Allegation 3: 24 June 2016
24 June 2016 was the last day of Term 2 of the 2016 school year.
Again, Ms Diani believed that the children ought to have been provided to her at 4:30 p.m. on that day, while Mr Diani believed that he was obliged to provide them at midday on Saturday, 25 June 2016.
Therefore, as the issues raised in this Allegation are almost identical to those in the previous Allegations, I find that Mr Diani did contravene paragraph 5(c) of the final orders on 24 June 2016, but that he had a reasonable excuse under s.70NAE(2) of the Act.
Count 2: Allegation 4: 16 September 2016
16 September, 2016 was a Friday.
[X] had to be at Melbourne Airport at 6:00 a.m. on Saturday, 17 September 2016 in order to attend a school camp.
On 14 September 2016, 2:33 p.m., Ms Diani sent an email to Mr Diani stating the following:
Mr Diani,
You have not provided any reasons why you are not following the Court Order.
After you withheld the children last holidays I sought legal advise (sic) and the Lawyer explained the order to me and I hope this also assist you (sic) to understand the Order.
If the Court Order was the children spend time with myself each alternate week from Wednesday then if Saturday was the first day of the holidays then the children would remain in my care from Wednesday until the Saturday when they would be in your care for your time spend holiday period.
As per the Order the children are in my care, 4:30pm Friday 16 September 2016 for the normal time spend period. They do not return to your care until the first day of the holidays which again as per the court order is Saturday, 17 September 2016.
If you are not happy with the current Orders then one of your options are (sic) to go to Court but until such time as the Court Orders change they are to be followed please read Parenting orders – obligations, consequences and who can help which is attached to the Court Order.
If you do not provide the children at 4:30pm Friday, 16 September 2016 you will be deliberately contravening the orders with no excuse to do so.
It would appear from that evidence, that Ms Diani concurs with my interpretation of the Final Orders. Further, it appears that she believes that that interpretation was intended by the parties when the orders were made on 18 March 2015.
Nevertheless, Mr Diani’s response, sent at 3:22 p.m. on 14 September 2016, states as follows:
As you well know, the order pertaining to the midday start was put in place so that as the boys get older they can go to end of term parties and celebrations with their friends before going to your place the next day.
There is no way that I am going to provide the boys on Friday night.
I have not quoted either email in its entirety, as those set out above are the only excerpts relevant to this Allegation. However, the tone of the emails, and especially of that from Mr Diani, is denigrating and insulting, and indicates a complete lack of cooperation in parenting their children.
Despite the animus between the parties which jumps from the page in these emails, the legal issues are identical to those raised in the previous Allegations under this Count, and I therefore find that while Mr Diani did contravene paragraph 5(c) of the Final Orders on 16 September 2016, he had a reasonable excuse under s.70NAE(2) of the Act.
Count 2: Allegation 5: 23 June 2017
In her Affidavit sworn 21 July and filed 24 July 2017, Ms Diani states that she had sent email and text messages to Mr Diani on 20 April 2017, 24 April 2017, 27 April 2017, and 22 June 2017 in relation to the Term 2 holidays in 2017.
She says she did not receive a response to those messages until 23 June 2017, when, at 12:06 a.m., Mr Diani sent yet another vitriolic and somewhat patronising email to her, explaining his interpretation of the Final Orders again, and stating that the children “will be provided at midday on Saturday”.
The legal issues being identical to those in the previous four Allegations, I find that Mr Diani contravened paragraph 5(c) of the Final Orders on 23 June 2017, but that he had a reasonable excuse under s.70NAE(2) of the Act.
Count 3: that on 7 November 2017, the father contravened paragraph 5(d) of the Orders of 18 March 2015.
Paragraph 5(d) of the Final Orders reads:
5. That the children spend time with the wife as follows:
(d). commencing 28 April 2015 and each alternate week thereafter from 4.30pm to 7.30pm for the purposes of a meal;
In her Affidavit sworn and filed on 11 March 2018, states as follows in paragraphs 7 and 8:
The court order dated 18 March 2015 section (5) clearly defines the time spent period between myself and the children.
Mr Diani has prevented myself from spending time with [X] since the 28 October 2017. I did not see [X] for my time spend weekend periods as per court order (5 c) (sic), I have not seen [X] for the Tuesday night time spend periods as per court order (5 d) (sic).
She then goes on to state that she had not seen [X] in the 2017-2018 long summer holidays, or at Christmas, and that she had only spoken to him by telephone twice since 28 October 2017.
Unfortunately, she does not mention in her Affidavit that she was specifically prevented from spending time with [X] from 4:30 p.m. to 7:30 p.m. on 7 November 2017.
Rule 25B.02(2)(a) of the Federal Circuit Court Rules 2001, states that an applicant in contravention proceedings must file an affidavit which “states the facts necessary to enable the court to make the orders sought the application”[7].
[7] Federal Circuit Court Rules2001, r 25B.02(2)(a)
Contravention proceedings are quasi-criminal in nature. Penalties for contraventions can be severe, including, in extreme cases, a sentence of imprisonment. Therefore, the Court must insist that an Application for a party to be dealt with for contravention of court orders complies with its Rules.
Unfortunately for Ms Diani, the fact that she does not specify, in her Affidavit sworn and filed 11 March 2018, the date on which Mr Diani is alleged to have contravened paragraph 5(d) of the Final Orders, means that she has not complied with rule 25B.02.
In those circumstances I will dismiss this Allegation as it does not comply with the Rules of this Court.
Summary of Findings
In summary then, my findings in relation to the three Counts of Contravention set out in the Applications filed 24 July 2017 and 16 November 2017, are as follows:
Count 1: Allegation 1: Proven without a reasonable excuse
Count 1: Allegation 2: Proven without a reasonable excuse
Count 1 Allegation 3: Proven without a reasonable excuse
Count 2 Allegation 1: Proven but with a reasonable excuse
Count 2 Allegation 2: Proven but with a reasonable excuse
Count 2 Allegation 3: Proven but with a reasonable excuse
Count 2 Allegation 4: Proven but with a reasonable excuse
Count 2 Allegation 5: Proven but with a reasonable excuse
Count 3: Not proven, Allegation dismissed
Penalty
Subdivisions E and F of Division 13A of the Act provide for penalties to be imposed when a Court makes a finding that a person has contravened a parenting order without reasonable excuse.
Subdivision E addresses contraventions that are said to be less serious.
Section 70NEB sets out the powers of the Court when the Court has made a finding of a less serious contravention as follows:
70NEB(1) if this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all or any earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with the person for a particular period); and
(iii) the person referred to in paragraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Section 70NEC deals with the bond a court may impose under s.70NEB(1)(b):
70NEC(2) A bond is to be for a specified period of up to 2 years.
70NEC(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
Section 70NECA states that, if the Court requires a person to enter into a bond, and a court finds that the person has, without reasonable excuse, failed to comply with the bond, the Court may impose a fine not exceeding ten penalty units on the person, or it may deal with that situation as though it were a new Contravention Application.
Subdivision F deals with those contraventions said to be “more serious”.
Section 70NFA states that the Court may deal more seriously with a person who it has found to have “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
Section 70NFB then sets out the powers of the Court in those circumstances:
70NFB(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section70NFC to make a community service order – to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child – to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in sub paragraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
The Court’s powers to make orders upon a finding that a person has contravened a parenting order without reasonable excuse are broad.
I have found that although Mr Diani contravened the Final Orders on nine occasions, he had a reasonable excuse on all but three of those.
Those three contraventions involved Mr Diani failing to inform the mother of his children about salient events in their lives.
The level of conflict between these parents is extremely high, and neither impressed at trial as being reasonable, cooperative, or even rational when it came to their communications about arrangements for their children.
One of Ms Diani’s persistent complaints is that Mr Diani, who holds sole parental responsibility for the children, does not keep her informed about important events in their lives, and that she is excluded from relevant information about them.
My findings in relation to Count 1 of the Application support that complaint.
That is not to say that Ms Diani is faultless in her parenting relationship with Mr Diani.
Both parties are articulate and intelligent people. They hate each other with a passion to the extent that they behave in an irrational manner when it comes to their co-parenting relationship. That does not augur well for the future mental health of their children.
[X] will leave the jurisdiction of this Court when he turns 18 on … 2019.
As far as it is possible to glean from the evidence, [Y] appears to be spending time with his mother essentially in accordance with the Final Orders.
In those circumstances, I do not find it appropriate to impose any penalty on Mr Diani under s.70NFA or NFB of the Act.
However, I will order him to attend a post-separation parenting program under s.70NEB(1)(a) of the Act in the hope that he might learn strategies assist him to be a more cooperative parent when it comes to sharing information about the children.
In addition, I will vary the Final Orders under s.70NBA(1)[8] of the Act so that the anomalies which have brought so much conflict to this family are removed from them.
[8] S.70NBA(1) of the Act states that the court may vary a primary parenting order in contravention proceedings whether or not the court finds the respondent guilty of any contravention.
Conclusion
This is a very high conflict parental relationship.
Both parties present as both articulate and intelligent, and stubborn and inflexible, and it is difficult to see them coming to amicable agreement on anything to do with their children. Of course, each blames the other for any conflict between them.
It is hoped that there can be an end to all proceedings, and that these parents can put their children’s best interests ahead of their own acrimony, although if past history is any guide to the future, these will not be the final proceedings between these parents.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 8 March 2019
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