DING & DING
[2015] FamCA 648
•7 August 2015
FAMILY COURT OF AUSTRALIA
| DING & DING | [2015] FamCA 648 |
| FAMILY LAW – CHILDREN – four counts of contravention alleged by mother – alleged contravention of spend time arrangements with children – three counts of contravention not established – not satisfied on balance of probabilities – one count of contravention dismissed – reasonable excuse. |
| Family Law Act 1975 (Cth), ss 70NAA(3), 70NAC, 70NAE, 70NAF, 70NDB, 70NEA, 70NEB, 70NEC, 70NFB(2) and 70NFF(3) Family Law Rules 2004 (Cth), r 21.08 |
| Abud & Abud [2010] FamCA 1132 |
| APPLICANT: | Ms Ding |
| RESPONDENT: | Mr Ding |
| FILE NUMBER: | ADC | 4389 | of | 2012 |
| DATE DELIVERED: | 7 August 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 30 June 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Harry Alevizos |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | Jaak Oks Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Georgina Parker Lawyers |
Orders
Finding that three counts of contravention not established and satisfied that there was a reasonable excuse for the fourth count of contravention.
That the Contravention Application filed 20 October 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ding & Ding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: ADC 4389 of 2012
| Ms Ding |
Applicant
And
| Mr Ding |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother brings an application for contravention of interim parenting orders made by Judge Brown in the Federal Circuit Court in Adelaide on 31 July 2014. On the same date Judge Brown transferred all applications to the Family Court in Adelaide.
The proceedings concern two children of the marriage, B aged 12 and C aged 10.
Pursuant to those interim parenting orders, the children were to spend time with the mother each Wednesday from 4.00 pm until 6.00 pm and each Sunday from 10 am until 4.30pm. The children were to be delivered and collected by the father from the mother’s home, noting that the father was to withdraw from the vicinity of the mother’s premises during the periods that the mother was spending time with the children. These orders represented a small increase of two and a half hours in the time for the children to spend with the mother each Sunday, from the previous arrangement.
It was agreed that the interim orders were made in circumstances where the parties did not attend court and the orders were emailed and posted to the parents. The reasons for judgment were delivered on 31 July 2014 in the absence of the parents but both parents had attended the original contested hearing on 17 July 2014 where they were represented by counsel.
The mother’s Application in a Case filed 20 January 2015 alleges four counts of contravention as follows:
(1)On Sunday 3 August 2014, the respondent without reasonable excuse collected the children at 2.00 pm rather than at 4.30 pm. It is alleged that this is in breach of paragraph 1(b) of the Orders made by Judge Brown on 31 July 2014;
(2)It is alleged that on Sunday 17 August 2014, the respondent without reasonable excuse failed to deliver the children to the mother in breach of paragraph 1(b) (of the Orders made by Judge Brown on 31 July 2014);
(3)It is alleged that on Sunday 7 September 2014, the respondent without reasonable excuse failed to deliver the children to the applicant mother in breach of paragraph 1(b) of the Orders made by Judge Brown on 31 July 2014;
(4)It is alleged that on Wednesday 24 September 2014, the respondent without reasonable excuse failed to deliver the children to the applicant mother in breach of paragraph 1(a) of the Orders made by Judge Brown on 31 July 2014.
The respondent denied all four allegations. The mother seeks an order compensating her for time lost pursuant to s 70NDB of the Family Law Act 1975 (Cth) (“the Act”). In the alternative and/or in addition to, the mother seeks an order that the father attend a post separation parenting program.
Background
The background of the family is outlined Judge Brown’s reasons for judgment.[1] The father was born in Country D in 1969 and migrated to Australia in 1980. He is fluent in English. The mother was born in Country D in 1977 and was sponsored by her husband in order to migrate to Australia shortly after the marriage. Her English is limited. The parties met in Country D in 1999, were engaged in 2001 and married in Country D in 2002.
[1] [2014] FCCA 1688.
The father is a pharmacist and works in a pharmacy owned by members of his family. There is considerable controversy between the parties regarding the extent of the father’s interest in the business. During the marriage the mother undertook the household duties. At paragraph 8 of her affidavit the mother deposes that: “The husband has incessantly endeavoured to undermine and minimise my relationship with the children and continues to do so…” and “…[the husband] continues to undermine and interfere with [her] relationship with the children.”
The parties separated on 24 June 2012.
The Procedure
The procedure for the hearing of a contravention application is set out under Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) which provides that the Court must:
(a)inform the respondent of the allegations;
(b)ask the respondent whether the respondent wishes to admit or deny the allegations;
(c)hear any evidence supporting the allegations;
(d)ask the respondent to state the response to the allegations;
(e)hear any evidence for the respondent; and
(f)determine the case.
The details of the four allegations were read to the respondent father at the beginning of the hearing and he denied each and every allegation. He was represented by counsel as was the mother.
Evidence
The mother relied on an affidavit filed 20 October 2014 in support of her Application in a Case alleging the contraventions.
The mother was cross-examined about the contents of her affidavit and a ruling was made that there was a case to answer on the evidence for each of the allegations.
The respondent father did not file any affidavit material but gave evidence and was cross examined by counsel for the mother. Counsel for the father also tendered two exhibits in support of the father’s case which were:
· Exhibit 1 – school attendance certificate for E School for both children for the period 22 September 2014 until 26 September 2014; and
· Exhibit 2 – an email sent from the father to his solicitors on 24 September 2014 at 2.08pm advising that both children “are very sick with temperature about 39 Celsius for 3 or 4 days now since I picked them up from their mother on Sunday. Please let her lawyer know that they will not coming over to their mother until they are well. Attached are their medical sick certificate.”
No other evidence was relied upon by the parties and counsel for each party made submissions at the conclusion of the evidence where judgment was reserved.
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides for an application for contravention of orders made under the Act.
Section 70NAA(3) of the Act provides that the orders that the Court can make depends on whether:
(a)a contravention is alleged to have occurred but it is not established (Subdivision C); or
(b)the Court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Meaning of “contravened” an order – section 70NAC of the Act
Relevantly, a person is taken for the purpose 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.
Standard of proof – section 70NAF of the Act
Under section 70NAF(1) and (2) of the Act the standard of proof to be applied in determining whether a person contravened an order and further whether that person had a reasonable excuse for doing so is the civil standard, on the balance of probabilities. In Dobbs v Brayson [2007] FamCA 1261, the Full Court identified four categories of fact to which questions of the appropriate standard of proof relate, namely, those going to:
·Whether the alleged contravention occurred;
·Whether a reasonable excuse for the contravention existed;
·Whether a contravention without reasonable excuse was ‘less’ or ‘more’ serious; and
·What order should be made, including whether an order should be made under section 70NFB(2)(a), (d) or (e) or section 70NFF(3)(a).
Meaning of “reasonable excuse for contravening” an order – section 70 NAE of the Act
Section 70NAE provides for the meaning of “reasonable excuse for contravening” an order and is set out in the following terms:
(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).
Less serious or more serious contravention
Section 70NEA of the Act sets out the manner in which the Court should deal with a contravention without reasonable excuse in circumstances where it is considered “less serious”. Section 70NEB of the Act sets out the powers of the Court. This provides as follows:
(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 of an 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 a person for a particular period); and
(iii)the person referred to in subparagraph (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 of the Act provides the terms and conditions of a bond if a Court requires a person to enter into a bond under section 70NEB(1)(d).
Allegation 1 – Sunday 3 August 2014
The order which is alleged to have been contravened was made on the 31 July 2014. It was agreed that the parties were notified by email and post of the Orders and Reasons for Judgment. The first contravention was alleged to have occurred on the first Sunday after those orders were made.
In issue was the timing as to when the father received this information. The first contravention alleged by the mother was that the father had collected the children two hours earlier than the time specified under the Orders on the first occasion when the mother was spending time with the children after the interim orders had been made. This occasion was 3 August 2014. There was no dispute that the father delivered the children to the mother on Sunday 3 August 2014 at 10 am in accordance with the arrangements in place before 31 July 2014.
Under the earlier arrangements the father would collect the children at 2.00pm. There was no evidence that the mother advised the father about the new arrangements when he delivered the children at 10.00am that morning. The father’s evidence was that the mother said nothing about the time the children were to be collected that day and the mother gave no evidence about having said anything to the father at 10.00am that day. The evidence of the mother was that when the father arrived at 2.00pm instead of 4.30pm to collect the children she told him that he was too early and should not be collecting the children until 4.30pm. The mother’s evidence was given with the assistance of an interpreter. In her affidavit the mother deposed about Sunday 3 August 2014:
The husband did deliver the children to me at 10.00am but instead of returning at 4.30pm to collect them, he returned at 2.00pm. I told him that the children were to remain with me until 4.30pm but he would not listen or indeed respond to me. He then took the children, inspite of my protestations, and left with them.[2]
[2] Affidavit of mother filed 20 October 2014, para 6(a).
In cross examination it was suggested to the mother by counsel for the father that the father did not know about the new orders which had been made. The mother was not responsive to these questions and stated “he knows the English language and has his lawyer but he says he doesn’t understand. Why?”
Counsel for the father suggested to the mother that the father didn’t know about any order extending the time to 4.30pm and the mother responded “if he did not know why – when we were in court – and a note was made by the interpreter”. When it was suggested that she was mistaken because the order was not made when the parties were present in court but only provided to them via email, the mother stated:
The first time he collected the children at 2.00pm and the following time he collected the children at 4.30pm.
The father gave sworn evidence that on 1 August 2014 he was unaware that the orders made 31 July 2014 had been emailed to his solicitors. He testified that he did not receive the reasons for judgment or the orders and had not read them prior to 3 August 2014. His evidence was that he did not receive any correspondence advising of the change of time and that when he collected the children at 2.00pm on 3 August 2014 the mother told him that her lawyer had said that it was 4.30pm when the children should be collected and he told her that the order “said 2.00pm”.
In cross examination he gave evidence that the mother did not advise him that the orders had been made but stated that “her lawyer said she could spend time with the children until 4.30pm”. He gave evidence that he did not have a mobile phone and that it was not possible to contact his lawyer until the following Monday when he obtained a fax of the letter from his lawyer. He stated that he didn’t believe the mother and that he rang his lawyer on Monday and asked him if he had the court order because he was waiting for it. He was told that there was a court order but he didn’t have the paperwork. He stated that he read the fax from his lawyer when it was sent to him on the following Monday and he could not remember when he received the posted information from the court. He stated that he would not accept that he had to obey the court order unless he was satisfied that he had read it. In his evidence he raised the issue of why the wife did not tell him about this when he delivered the children in the morning and only raised it with him at 2.00pm when he arrived to collect the children.
The mother conceded that she did not seek any make-up time through her solicitors for the alleged contravention on 3 August 2014, however she gave evidence that she instructed her solicitors to write to the husband to notify him after that date that he had collected the children at the wrong time. Counsel for the father called for that letter but the solicitors for the mother were unable to produce it.
In cross examination counsel for the father put to the mother the proposition that the father had only become aware of the orders on 4 August 2014 and the mother responded:
He did not say that – he only came early to pick up the children.
Finding about Allegation 1
Counsel for the mother virtually conceded that the evidence tended to suggest that the father did not know about the operation of the orders given that on his evidence he did not have a mobile telephone and even if he did, on a Sunday afternoon it was unlikely that he would be able to communicate with his lawyers. I accept the submission of counsel for the father that it was an appropriate expectation even if the father had a mobile telephone that he could not communicate with his solicitor on a Sunday afternoon. I accept the evidence of the father on oath that he was not aware that the orders had been made and that they had not been communicated to him on 3 August 2014 and that when he attended to collect the children at 2.00pm the mother did not inform him that the orders had been made but rather that she had been told by her lawyer that the children were to be collected at 4.30pm. I accept his evidence that he was not in a position to communicate with his lawyer to ascertain whether there had been any changes to the arrangements by court orders which both parties agree were forwarded by email and post when they were made. The mother’s evidence did not contradict the father’s evidence that she did not inform him that the orders had been made. There is no dispute between the parties that the father on 3 August 2014 collected the children two hours earlier than was provided for in the orders of Judge Brown.
The onus of proof is on the mother on the balance of probabilities and she has not proved her case that the father intentionally failed to comply with the order or made no reasonable attempt to comply with the order. Having regard to the litigious background of the relationship between the parties it is not surprising that the father did not remain at the mother’s home to take issue with her or to seek further information about what her lawyer had told her. I am not satisfied that the mother has proved that the father intentionally failed to comply with the order or made no reasonable attempt to comply with the order on 3 August 2014 because I am not satisfied that the father was aware of the orders made 3 days earlier. This is particularly so where part of those 3 days was a weekend. On the balance of probabilities and on the evidence before me I am not able to find that the father has contravened the order and accordingly I dismiss allegation 1.
Allegations 2 and 3 – Sunday 17 August 2014 & Sunday 7 September 2014
The second and third allegation made by the mother against the father was that he failed to deliver the children to her on two Sundays in accordance with the orders. The occasions were 17 August 2014 and 7 September 2014. In her affidavit, the mother deposes that the father failed to deliver the children at all on Sunday 17 August 2014 and deposed that the father “made no effort to communicate with me to advise as to his reasons for not complying with the court orders.”[3] In relation to the third allegation of contravention, the mother deposed that the father failed to deliver the children at all on Sunday 7 September 2014. She deposed that the father “made no effort to communicate with me to advise as to his reasons for not complying with court orders”[4].
[3] Affidavit of mother filed 20 October 2014, para 6(b)
[4] Affidavit of mother filed 20 October 2014, para 6(c)
In cross examination the mother gave evidence that she had a book where notes were taken when the children were not delivered to her but did not produce that book in court. She conceded that her lawyers did not correspond with the solicitors for the father about the children’s failure to attend on both occasions and she also conceded that she did not seek any make up time to compensate for the children not attending or correspond with the solicitors for the father about either of these incidents. She conceded that the first written notice to the father about these allegations was raised when she filed her Contravention Application in a Case and Affidavit. In cross examination the mother also conceded that she never sought an explanation through her solicitors from the father through his solicitors for the children’s non-attendance. When she was asked whether she had interrogated the father at any time about the reasons for the children’s non-attendance, the mother stated that “from memory I would ask him the next time and he would drive off”. The mother was not shaken in cross examination about her certainty that the children were not delivered to her on both occasions.
The father in evidence in chief was adamant that he had delivered the children to the mother in accordance with the orders on every Sunday and that he had delivered the children to spend time with the mother on 17 August 2014 and also on 7 September 2014. His evidence was that he attended on each occasion to deliver the children and the children spent time with the mother in accordance with the orders. He gave evidence that at no stage did he ever receive any written complaint either personally or from his lawyers about the children failing to attend to spend time with the mother on 17 August 2014 or 7 September 2014. The father’s evidence was that the first written communication which he received alleging that the children had not been delivered on those two occasions to spend time with the mother was when he received the mother’s Contravention Application and Affidavit. This accords with the mother’s own evidence.
Counsel for the mother conceded that there was no objective material in evidence for charges 2 and 3 and that it may be a matter of credit only. Counsel for the father submitted that the credit of the mother is undermined by her evidence that she did not communicate with the father in writing or in any other way that there had been a flagrant breach of the orders on those two occasions and she had not warned the father or sought any makeup time which one would expect would be a natural sequelae for this alleged conduct. Counsel for the father submitted that this “does not sit with her taking the matter seriously” as a contravention and the inference is that the mother cannot be believed on this point. Counsel for the father submitted that the mother has not made out on any basis that the father did not deliver the children to the mother on those two occasions. Counsel for the father relied on the evidence of the father that it was routine for him to deliver the children and collect them every Sunday and the alleged contravention “simply didn’t happen”.
Finding about Allegations 2 and 3 on 17 August 2014 and 7 September 2014
There is sworn evidence from both parents that is completely contradictory about what occurred with the arrangements for the mother to spend time with the children on 17 August 2014 and 7 September 2014. Neither parent was undermined in cross examination and both were adamant that their version of events was truthful. Both parents gave credible evidence but the mother did not provide any records in accordance with her assertion that she had written records detailing the attendances of the children. There were no other issues of credit which would affect my assessment of the evidence of both parents and I am left with competing accounts of their version of events without any corroborating evidence. There is also no evidence that the mother communicated either personally or through her solicitors to the father about any complaint that he did not present the children to spend time with her on those two occasions.
The onus is on the mother to prove her case that the father contravened the orders on both of those occasions by failing to deliver the children to her. On all the evidence I am not satisfied that the mother has proved on the balance of probabilities that the father failed to deliver the children to her in accordance with the orders on 17 August 2014 or 7 September 2014. Accordingly the allegations of contravention for both dates are not proven.
Allegation 4 – 24 September 2014
The mother deposed that the father failed to deliver the children to her on Wednesday 24 September 2014. The mother deposed that the father belatedly produced a certificate of sickness for each child and annexure QTD1 to the mother’s affidavit is a letter from the solicitors for the father dated 24 September 2014 informing the mother that both children “are sick and as a result the boys will not be able to see their mother today”. The letter encloses a copy of a medical certificate for both children which discloses that both children were examined by Dr F on 24 September 2014 and in the opinion of the doctor each child was suffering a viral illness and was “unfit for work from 22 September 2014 up to and including 28 September 2014”. The certificates record that each child should be able to resume work on 29 September 2014.
The mother deposed “the children were to be in my care from 4.00pm to 6.00pm that day. Once again, the husband made no effort to communicate with me to advise as to his reasons for not complying with the court orders. Following that, my solicitor instructs and I verily believe that he received an email from the husband’s solicitor at 6.15pm that evening (i.e. after my time with the children was due to conclude) advising that the children ‘were sick’.”[5]
[5] Affidavit of mother filed 20 October 2014, para 6(d)
In cross examination the mother insisted that the contravention applications she had brought did not include the dates referred to in the medical certificates. When it was suggested by counsel for the father that the father attended personally on 24 September 2014 to tell her that the children were sick and could not attend the mother responded “I do remember he came to my place to give me medical certificates. I have notes. He gave me certificates for that date and further dates.” The mother denied that the father had earlier discussed with her on 21 September 2014 that the children were not well and stated that “he did not talk to me.” The mother conceded in cross examination that after 24 September 2014 her solicitors did not communicate with the father’s solicitors about the children failing to attend and she stated that she notified her solicitor on “any day that the husband did not bring the children”. The mother also conceded that she did not ask her solicitors to request makeup time for 24 September 2014 and the first time that she made any complaint in writing was the contravention application and her affidavit which was filed 20 October 2014. In re-examination the mother was asked by her counsel when she first saw the medical certificates. She responded that from memory “the last time that he did not have anymore contraventions, then I saw these”.
The father in evidence in chief stated that he had taken both children to the doctors’ around lunchtime on 24 September 2014 and that they had not attended school because they had been sick during the week. His evidence was that he had advised the mother at the previous ‘spend time’ occasion that the children were not well but he complied with the orders because he thought they were well enough to spend time with her. His evidence was that when they returned from that last occasion of spending time with the mother they had a fever and he kept them home from school. Exhibit 1 was produced by the father as evidence of the non-attendance of the children at school for a number of days due to a viral illness.
In cross examination the father confirmed that the children were absent from school because they were unwell between 22 September and 26 September 2014 relying on Exhibit 1. He gave evidence that he went to the home of the mother and told her that the boys were sick and provided her with a medical certificate which he had obtained from the doctor at lunchtime and told her that they would not be attending because they were at home. His evidence was that the children were suffering from nausea, vomiting and diarrhoea which had started on the Sunday when he picked them up from the mother at 4.30pm. His evidence was that the older boy was very sick when he picked him up but that he had already been “a little bit ill” when he dropped them off. He stated that the children were unable to go to school on 22 September 2014 because of a high temperature and that they still had diarrhoea and some vomiting and that the school had asked him to keep them at home. He stated that on 23 September 2014 the children did not attend school but had stopped vomiting and the diarrhoea was not as severe but they still had a high temperature. His evidence was that the children were in the care of his parents and himself and that he came in and out and telephoned his parents every four hours to remind them of medication. He stated that his sister also cared for the children and the doctor visited them at home.
When it was suggested that the children were improving by 24 September 2014 he stated “no. Viral can change at any time.” The father insisted that the children had required medical attention on 24 September 2014 because they had a high temperature and he wanted the doctor to diagnose the symptoms. He stated that they were still very sick and weak. The father denied that the reason he went to the doctor was to obtain a medical certificate for the school and insisted that he took the children to the doctor because he was concerned about having their condition diagnosed. In cross examination the father was asked about whether he made any offer for makeup time and he stated “why not ask her – it’s up to her. I left immediately because the court ordered me not to hang around.” When it was suggested that it might be helpful for him to have offered makeup time, the father stated:
Boys were sick. I turn up. I tell her. If she wants makeup time she has to speak up.
Finding regarding allegation 4 on 24 September 2014
Exhibit 2 produced by the father indicates that he sent an email to his solicitors at 2.08pm on 24 September 2014 advising that both children were unwell with high temperatures since the father collected the children from the mother three days earlier and requesting that the mother’s solicitor be advised that the children would not be spending time with the mother until they are well. The father’s email refers to having a medical certificate attached.
The mother’s evidence was unclear about whether the father attended her home to advise her that the children were unwell but seemed to suggest that she was unaware of the situation until the father presented the certificates. The mother’s evidence was unclear about the date when those certificates were supplied to her. On her own evidence her own solicitors notified her about the children’s illness on 24 September 2014 and provided her with the medical certificates. The mother was not in a position to provide any evidence about the state of health of the children and I accept the medical certificate provided by the father and the record of school attendance which indicates that the children had not attended school and had been unwell for about a week prior to 24 September 2014.
Counsel for the mother made submissions that the father’s own evidence was that the children were improving and that the evidence of the father demonstrated an attitude of non-cooperation and that he was evasive in his responses. The submission of counsel for the mother was that the fever was not a sufficiently reasonable explanation for the father failing to deliver the children to the mother in circumstances where she was capable of caring for them. He referred to the evidence of the father that the children were cared for by the paternal grandparents and that the father had spent time at work on that date. He submitted that the responses of the father indicated a derogatory view of the mother and an attitude of “why should I?”. Counsel for the mother relied upon the decision of Childers & Leslie [2008] FamCAFC 5 at paragraphs 4 and 30 to 34 and in particular a reference in that decision to statements made in In the Marriage of Gaunt (1978) FLC 90-468 where it was stated:
The essential question is this – can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act ...
A party’s subjective views of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable cause’…[6]
[6] In the Marriage of Gaunt (1978) FLC 90-468, para 34
Counsel for the mother also relied on the decision of Abud & Abud [2010] FamCA 1132 at paragraphs 43 and 48 where his Honour Cronin J referred to the same passage in In the Marriage of Gaunt and where his Honour quoted Warnick J sitting as a single judge of the Full Court on an appeal from a Federal Magistrate in the decision of Childers & Leslie where he considered the question of reasonableness. Warnick J stated:
Moreover, the learned Magistrate may well have fallen into error by applying too loose a test of ‘reasonableness’. The question is not simply whether, viewed from [an] ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms ‘reasonable grounds’ and ‘reasonable excuse’ in section 70NAE is, I think, similar to that of terms of like generality, for example, ‘any just cause’ used elsewhere in the Act.’
The father has conceded that he was aware of the order made by Judge Brown on 31 July 2014 when he failed to deliver the children to the mother on Wednesday 24 September 2014. He has conceded that he was bound by the order and intentionally failed to comply with the order within the meaning of section 70NAC of the Act. However I accept his evidence about the state of health of the children on that day and the fact that he was concerned about the symptoms which they were suffering which included a fever and that he consulted a doctor at about lunchtime who diagnosed a viral illness and provided him with medical certificates for both children. His evidence that the children were unwell for about a week is corroborated by the attendance records for the school which indicate that the children were absent from school for the period from 22 September until 26 September 2014 due to ill health.
The mother’s evidence about the circumstances of the father providing her with the medical certificates was unsatisfactory and vague. Her answers to questions were non-responsive at times and she insisted that she had not made any complaint by way of contravention in respect of the occasions when the children were unwell. This is inconsistent with her evidence in affidavit form. Paragraph 6(d) of the mother’s affidavit filed 20 October 2014 refers to the contravention on Wednesday 24 September 2014 and states:
… although I remain sceptical about the children being so unwell to the extent that they were unable to spend time with me in accordance with the orders, it would nevertheless have been prudent on the husband’s part to advise me of these apparent medical difficulties prior to my time with the children taking place.
The evidence is that the solicitors for the mother were not advised until 6.15pm on 24 September 2014, which was about 2 hours after the mother was to commence spending time with the children. However the mother in her evidence in cross examination was adamant that she was not pursuing a contravention for the occasions when the children were unwell and that she was only pursuing a contravention for the occasions where the father had failed to deliver the children when they were in good health. This evidence contradicted the submissions made by her counsel that the children may have been unwell but were not sufficiently unwell to preclude their being cared for by the mother.
In the circumstances of this case where I accept the father’s evidence about the viral illness suffered by the children supported by a medical certificate and the records of the school indicating that the children were absent due to ill health for a number of days which include 24 September 2014, I am satisfied that the father has proved on the balance of probabilities that he had a reasonable excuse for contravening the order.
Section 70NAE of the Act provides for circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children. However, the circumstances in which a person may be taken to have had a reasonable excuse are not limited to those circumstances. Whilst I accept that the children’s health was improving from the early stages of the week, the children had been visited by a doctor at home and then taken to the doctor on the very day that they were absent from school and the father was obliged to deliver them to the mother. Whilst it is not appropriate to allow a party to arrogate to himself a supervening power to make an independent decision on an issue involving the child’s best interests and to rely on that decision to escape compliance with the court’s orders or from the consequences of non-compliance, I consider that it was reasonable in the circumstances of this case on this particular occasion for the father to have the children cared for in the home where they live and where the mother’s evidence suggests that she had not intended to pursue her application in respect of that particular day. The mother’s evidence was contradictory and unclear in terms of her complaint of contravention notwithstanding her counsel’s submission that the children were well enough to be spending time with the mother. There appeared to be communication issues for the mother with her lawyers which may have been due to her difficulty with English.
The father delivered the children to the mother on the occasion immediately before 24 September 2014 when they were unwell but I accept his evidence that their illness had deteriorated significantly after that date and this evidence is supported by other independent evidence. I am satisfied on the balance of probabilities that the father has established a reasonable excuse for the contravention of the order on 24 September 2014. In these circumstances I propose to dismiss the contravention application for that date.
Conclusion
I am not satisfied that the mother has proved her case that the father intentionally failed to comply with the order on 3 August 2014, 17 August 2014 and 17 September 2014 on the balance of probabilities (Allegations 1, 2 and 3).
I am satisfied on the balance of probabilities that the father intentionally failed to comply with the order on 24 September 2014 (Allegation 4) but that the father has proved on the balance of probabilities that he had a reasonable excuse for contravening that order.
Accordingly the contravention application filed 20 October 2014 by the mother is dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 7 August 2015.
Associate:
Date: 7 August 2015
0
4
2