DONALDSON & RYDER
[2019] FamCA 311
•16 May 2019
FAMILY COURT OF AUSTRALIA
| DONALDSON & RYDER | [2019] FamCA 311 |
| FAMILY LAW – ORDERS – Contravention – Where there are six counts of alleged contravention of final parenting orders – Where no reasonable excuse for contravention established – Where contraventions are less serious – Where orders made requiring the respondent to enter into a good behaviour bond for a period of three months. FAMILY LAW – COSTS – Where the respondent shall contribute to the costs of the applicant fixed in the sum of $2,000 payable within 90 days. |
| Family Law Act 1975 (Cth) |
| Acland & Grohl [2019] FamCAFC 69 Gravis & Major [2010] FamCAFC 239 Lenova & Lenova (Costs) [2011] FamCAFC 141 |
| APPLICANT: | Mr Donaldson |
| RESPONDENT: | Ms Ryder |
| FILE NUMBER: | BRC | 3460 | of | 2015 |
| DATE DELIVERED: | 16 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 10 May 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Harris, Keyworth Harris & Lowe Family Lawyers |
| FOR THE RESPONDENT: | Self-represented |
Order
The court having made the following findings
That the respondent contravened the order made 14 November 2017 (amended 21 May 2018) (“the primary order”) without reasonable excuse:
Count one
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 30 January 2019.
Count two
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 6 February 2019.
Count three
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 13 February 2019.
Count four
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 20 February 2019.
Count five
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 27 February 2019.
Count six
By failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 6 March 2019.
It is ordered
For the contravention of the primary order particularised as count one, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
For the contravention of the primary order particularised as count two, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
For the contravention of the primary order particularised as count three, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
For the contravention of the primary order particularised as count four, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
For the contravention of the primary order particularised as count five, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
For the contravention of the primary order particularised as count six, the respondent mother, Ms Ryder shall, within seven days, enter into a bond upon the following conditions:
(a) The mother must be of good behaviour for the duration of the bond including complying with the primary order;
(b) The bond shall be for a period of three months commencing on the date the mother enters into the bond;
(c) This bond is without surety and without security.
The respondent contribute to the applicant’s legal costs fixed in the sum of $2,000 payable within 90 days of this order.
NOTATION
While the sanction of a bond has been imposed against the respondent on each count of contravention, the bonds are concurrent.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donaldson & Ryder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3460 of 2015
| Mr Donaldson |
Applicant
And
| Ms Ryder |
Respondent
REASONS FOR JUDGMENT
On 14 November 2017 (amended on 21 May 2018) a final parenting order (“the primary order”) was made for the child, B born in 2013, to live with his father and spend time with his mother, initially supervised, and gradually increasing after six months to alternate weekends and each Wednesday after school until 6.00 pm.
The primary order made provision for changeovers to occur at a location/s once the child’s time with the mother ceased being supervised. The father contends that the mother has contravened the primary order by failing to return the child to the required location at the conclusion of the Wednesday evening visits.
The mother denies that she has contravened the order.
Alleged Contraventions
Count one
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 30 January 2019.
The mother denies she contravened the order.
Count two
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 6 February 2019.
The mother denies she contravened the order.
Count three
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 13 February 2019.
The mother denies she contravened the order.
Count four
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 20 February 2019.
The mother denies she contravened the order.
Count five
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 27 February 2019.
The mother denies she contravened the order.
Count six
The father alleges that the mother contravened the primary order without reasonable excuse by failing to attend R Contact Centre at S Street, Suburb T, in the State of Queensland at 6.00 pm on 6 March 2019.
The mother denies she contravened the order.
Primary order
The relevant parts of the primary order are as follows:
(5)The child shall spend time with the mother at all such times as may be agreed between the parents in writing but failing agreement as follows:
(a)…
(b)Commencing on 26 May 2018 … each Wednesday from 3.00 pm until 6.00 pm;
(c)…
(d)…
(6)…
(7)Upon the time spent with the mother ceasing to be supervised, all changeovers shall occur at the Centre, if not at the child’s school, or at such other place as may be agreed by the parties in writing.[1]
[1] Order made 14 November 2017.
[At the time of the 14 November 2017 order the ‘Centre’ was a reference to a Contact Centre in Suburb V, in the State of Queensland]
(2)The Orders made 14 November 2017 be amended to include the following additional Orders:[2]
5A. In the event that C Centre (“the Centre”) at U Street, Suburb V in the State of Queensland refuses for any reason to facilitate the changeovers required pursuant to Order 5 of the Orders made 14 November 2017, the following shall apply:
(a)the changeovers required pursuant to Order 5 of the Orders made 14 November 2017 are to be facilitated at R Contact Centre at S Street, Suburb T in the State of Queensland with the parties to share equally in the costs associated with those changeovers;
(b)…
(c)…
5B. …
5C. …
[2] Amending order made 21 May 2018.
Determining an application - contravention that affects children
Before turning to consider the particular counts of alleged contravention, I note that an alleged contravention of an order that affects children is governed by Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). Division 13A deals with the powers of a court to make orders to enforce compliance with orders affecting children. The Court always has the power to vary the order but the orders that the Court can make depend upon whether:
a)A contravention is alleged to have occurred but 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 excused for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
(s 70NAA)
There are three distinct questions to consider in determining a contravention application:
d)Has an order been contravened within the meaning of s 70NAC;
e)If so, does the respondent have a reasonable excuse within the meaning of s 70NAE; and
f)What sanction or other order should be made, if any (Subdivisions B, C, D, E or F).
An order is contravened if the person bound by the order has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order (s 70NAC).
The onus of proof rests upon the applicant to establish that the respondent has contravened the order on the civil standard i.e. on the balance of probabilities (s 70NAF(1)) unless the sanction to be imposed is of a specified type (s 70NAF(3)).
If it is found that the respondent has contravened the order then the respondent must establish that she had a reasonable excuse (s 70NAE) on the balance of probabilities (s 70NAF(2)). A respondent may be taken to have had a reasonable excuse for contravening an order in certain circumstances (although not limited to these circumstances), namely, that the respondent did not understand the obligations imposed by the order and the Court is satisfied that the respondent ought be excused or the respondent believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person (including the respondent or the child) and the period of the contravention did not exceed the time necessary to protect the said person.
Pursuant to s 70NAF(3) if an order is to be made under subparagraphs 70NEB(1)(da) (fine for failure to enter into bond) or 70NECA(3)(a) (fine for failure to comply with a bond) or 70NFB(2)(a), (d) or (e) (community service order, fine, or imprisonment) or 70NFF(3)(a) (fine for failure to comply with community service order or bond) then the Court must be satisfied beyond reasonable doubt that the grounds for making the order exist.
Depending upon the findings made, the Court has a range of options in terms of possible sanctions or orders. The imposition of a sanction or the making of an order is discretionary.
Discussion
It is common ground that at the time of the alleged contraventions the changeovers were to occur at R Contact Centre pursuant to the primary order and had been occurring there since May 2018. The child commenced school in 2019 and when he is at school, changeovers occur at school. The changeover at 6.00 pm is outside school hours.
On each occasion of alleged contravention the father attended R Contact Centre and the mother did not. There was no written or verbal agreement to change the location of changeover to a place other than R Contact Centre.
On 30 January 2019 the mother acted unilaterally by informing the father that changeover would occur at McDonalds at Suburb X. When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child. On 1 February 2019 the father, through his solicitor, put the mother on notice that, in his view, she was in contravention of the primary order. The father made it clear that he required changeovers (involving the parents) to be monitored, given the history of the matter, and thus required compliance with the primary order.
On 6 February 2019 the father received a text message from the mother at 2.19 pm stating that she would be at McDonalds at Suburb X for the 6.00pm changeover. The father responded, reminding the mother that changeover was to occur at R Contact Centre. The mother did not deliver the child to R Contact Centre. When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child.
On 13 February 2019 the father received a text message from the mother at 2.21 pm stating that she would be at McDonalds at Suburb X for the 6.00 pm changeover. This message was sent despite the father reminding the mother on 12 February 2019 that changeover was to occur at R Contact Centre. When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child.
On 20 February 2019 the father again reminded the mother, this time at 7.43 am that changeover was to occur at R Contact Centre. When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child.
On 27 February 2019 the father again attended R Contact Centre for the 6.00 pm changeover (having reminded the mother by text message at 11.03 am that day that changeover was to occur at R Contact Centre). When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child.
On 6 March 2019 the father’s request that the mother comply with the primary order by attending R Contact Centre for the changeover again went unheeded. When the mother did not turn up to R Contact Centre, the father made his way to McDonalds at Suburb X to collect the child.
On each of the occasions of alleged contravention changeover occurred well after the 6.00 pm time provided for in the primary order.
When the six separate counts of contravention were read to the mother (who represented herself at the contravention hearing), she denied that she had contravened the order within the meaning of the Act. In her affidavit, she appeared to concede that she had contravened the order but had a reasonable excuse for doing so. Accordingly, I have treated the mother as raising two matters in her defence. Firstly, that she has not contravened the order and secondly, if it be found that she has contravened the order, she has a reasonable excuse.
The mother contends that she has not contravened the order within the meaning of the Act because:
a)The current arrangements for changeover are unreasonable as the changeover is on the south side of Brisbane and both parties reside on the north side of Brisbane and the child attends school on the north side of Brisbane;
b)It is particularly difficult to comply with the order on Wednesdays because of peak hour traffic;
c)She has extreme difficulty in complying with the order because she does not own a motor vehicle;
d)She has requested a more convenient changeover on several occasions and suggested mediation; and
e)She has given as much notice as possible of her ‘inability’ at times to comply strictly with the order.
The mother summarised her position in her affidavit as follows:
12. … Due to the short period of time the child spends with me on Wednesdays, the distance to the changeover location, the peak hour traffic, the fact that I have not owned a car for some time and the fact that the car that I often borrow for changeovers has to be back on the northside by 6pm I believe I have a reasonable excuse for not being able to strictly adhere to the Orders on some occasions …
During cross-examination the mother conceded that she had the use of a borrowed motor vehicle on each of the occasions of alleged contravention. The mother did not, on any occasion of the alleged contraventions, attempt to travel to R Contact Centre. Despite the mother not being able to return the vehicle to its owner by 6.00 pm on any of the said occasions, the owner of the vehicle (the same person on at least five of the occasions) permitted the mother to continue to borrow the vehicle.
I conclude therefore that the mother intentionally failed to comply with the order and made no reasonable attempt to comply with it on each of the six occasions as alleged.
The mother conceded during cross-examination that she understood her obligations under the primary order. The contravention was not necessary to protect the health or safety of the child. While the current order may be inconvenient, that does not provide a reasonable excuse for contravening it. The fact is, the mother had the use of a borrowed motor vehicle on each occasion particularised but chose instead to contravene the order. Despite the mother’s evidence that she was in some way impeded by a restriction on her use of the vehicle, i.e. that the vehicle had to be returned by 6.00 pm, it was not returned by that time and, despite this, the mother was able to continue to borrow the vehicle on other occasions. I am not persuaded that the mother’s lack of ownership of a vehicle provides a reasonable excuse for contravening the primary order. Accordingly, I reject the mother’s defence that she has a reasonable excuse for contravening the order.
No court has previously made an order imposing a sanction or taking an action in respect of a contravention by the mother.
The father nevertheless submits that the mother has behaved in a way that showed a serious disregard for her obligations under the primary order (s 70NEA(4)) because she has repeatedly contravened the primary order despite warnings and that, accordingly, the contravention should be dealt with as a more serious contravention under Subdivision F of Division 13A. I was not taken to any authority to support the submission. It seems the motivation for seeking that the application be dealt with as a more serious contravention was so that a fine could be imposed.
There is no definition of ‘serious disregard’ or ‘more serious’ in the Act. It is trite to observe that all orders of the court should be complied with and a failure to do so should be regarded as serious. However, the legislature clearly intended there to be some differentiation between the seriousness of a contravention. The Full Court in Gravis & Major[3] considered this issue and found assistance in paragraphs 307 and 308 of the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill (2005)(Cth):
Subsections 70NFA(2) and (3) clarify when a contravention is of a more serious nature such that Subdivision F applies. Under subsection 70NFA(2), this will be the case even if no court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person, yet the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. Thus a person who only commits one contravention can be immediately dealt with under this Subdivision if they show serious disregard for their obligations. What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order. In such cases, the court will deal with the matter under Subdivision F, which requires the court to consider imposing more serious penalties ranging from community service orders to fines and imprisonment.
Subsection 70NFA(3) clarifies that a contravention is of a more serious nature, such that Subdivision F applies, if a court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person. Thus where there have been repeated breaches the matter would ordinarily be dealt with as a more serious contravention under Subdivision F.
[3] [2010] FamCAFC 239.
The circumstances of this case include six separate counts of contravention and repeated warnings by the father. However, the mother did not withhold the child on any occasion, and sought to engage with the father in attending mediation to find a more convenient changeover location. Overall, I consider it more appropriate to deal with the contravention under Subdivision E of the Act.
Section 70NEB of the Act sets out the powers of a court when a contravention without reasonable excuse has been found and the contravention is dealt with as a less serious contravention. More than one sanction or action may be ordered. In the circumstances of this case, I consider that the most appropriate sanction for each count[4] is to require the mother to enter into a bond to be of good behaviour for a period of three months and, in particular, to comply with the primary order. The bonds will be concurrent.
[4] Ibid at [169].
costs
Each party made submissions in relation to costs in the event that the contravention application succeeded.
Quite apart from the power in s 70NEB(1)(f) to order costs against a person who has contravened an order without reasonable excuse, the Court has the power to make an order for costs pursuant to s 117 of the Act. In this case I propose to consider the making of a costs order by reference to s 117. In considering what, if any, order for costs is made under s 117, the Court is to have regard to a number of matters (s 117(2)).
There is no evidence before me as to the financial circumstances of each of the parties although I know from the father’s affidavit that he is employed as a carpenter and at the commencement of the mother’s oral evidence she stated that she was a nurse. In her submissions, the mother asserted that she is employed casually three days per week and has no assets. Impecuniosity of itself does not preclude a costs order.[5]
[5]Lenova & Lenova (Costs) [2011] FamCAFC 141.
Neither party is in receipt of legal aid.
The proceedings were necessitated by the mother’s failure to comply with an order and the mother has been wholly unsuccessful.
It is preferable to make an order for a fixed sum so as to avoid the necessity for further legal costs to be incurred in settling a disputed claim.[6] While no submissions were made as to quantum, I have considered the family law scale when considering what order is appropriate in the circumstances.
[6]Acland & Grohl [2019] FamCAFC 69 at [27] per Aldridge J.
I propose to order that the mother contribute the sum of $2,000 towards the father’s legal costs and that she have ninety days to pay.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 May 2019.
Associate:
Date: 16 May 2019
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