Donovan and Hargrave
[2012] FMCAfam 306
•3 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2012] FMCAfam 306 |
| FAMILY LAW – Children – parenting orders – contravention – application to deal with Respondent for contravention of parenting orders – two children aged 14 and 11 residing with Respondent father – whether Respondent intentionally failed to comply with order – reasonable excuse – whether reasonable excuse established. |
| Family Law Act 1975, ss.70NAC, 70NAE, 70NEA, 70NEB Federal Magistrates Court Rules 2001, rr.25B.02, 25B.04 |
| Donovan & Hargrave [2011] FMCAfam 1468 In the Marriage of O’Brien (1993) 16 Fam LR 723; FLC 92-369 Matthews & Millar (1988) 12 Fam LR 205 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 13-14 December 2011 |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| The Respondent: | In person |
ORDERS
The Respondent Father did on 13 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the children [X] born [in] 1997 and [Y] born [in] 2000 to [B] McDonald’s in order that the Applicant Mother could spend time with them.
The Respondent Father did on 27 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the said children [X] and [Y] to [B] McDonald’s in order that the Applicant Mother could spend time with them.
Count 2 alleging a contravention of Order 6.2 made on 1 February 2011 is dismissed.
Count 4 alleging an ongoing contravention on an unspecified date or on unspecified dates of Order 13 made on 21 December 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of two boys for findings by the Court that the father has without reasonable excuse breached parenting orders made by this Court on 21 December 2010 and 11 February 2011. The mother also alleges further and continuing contraventions of those orders and of further orders made on 18 April 2011.
The Orders said to have been contravened are Orders 6.1 and 6.2 of the Orders made on 11 February 2011 and Order 13 of the Orders made on 21 December 2010.
The Orders of 11 February 2011 were made by consent. The Orders of 21 December 2010 were made after an interim hearing (Donovan & Hargrave[1]).
[1] [2011] FMCAfam 1468
Orders 6.1 and 6.2 made by consent on 11 February 2011 state:
6. That Order 8 of the Orders made on 21 December 2010 be varied so that the Mother spends time with the children as follows:-
6.1 From each Sunday 11am until 8pm;
6.2 From after school each Monday until 8pm;
Order 13 Made on 21 December 2010 states:
The mother may communicate with the children or either of them by telephone each Tuesday, Thursday and Saturday between the hours of 6.00 and 7.00 pm and the father is to do all things necessary to permit the children to receive telephone calls from the mother during that time.
The alleged contraventions
By her application filed on 3 March 2011, the mother claims that the father contravened the Orders on 13, 20 and 27 February 2011 and an unspecified date.
The first count claims a contravention of Order 6.1 made on 11 February 2011. It states that at 11:00 am on 13 February 2011 at [B] McDonald’s:
In direct contravention of the Orders, the Respondent Father did not bring the children to the collection point at [B] McDonald’s and as a consequence the Mother did not spend time with the children at all on Sunday, 13 February 2011.
The Father has been asked to provide his explanation for the contravention. He has provided no explanation.
The second count claims a contravention of Order 6.2 made on
11 February 2011. It states that at 11:00 am on 20 February 2011 at [B] McDonald’s:
In direct contravention of the Orders, the Respondent Father did not bring both the children to the collection point at [B] McDonald’s and as a consequence the Mother did not spend time with either of the children at all on Sunday, 20 February 2011.
The Father has been asked to provide his explanation for the contravention. He has provided no explanation.
The third count claims a contravention of Order 6.1 made on 11 February 2011. It states that at 11:00 am on 27 February 2011 at [B] McDonald’s:
In direct contravention of the Orders, the Respondent Father did not bring the children to the collection point at [B] McDonald’s and as a consequence the Mother did not spend time with the children at all on Sunday, 27 February 2011.
The Father has been asked to provide his explanation for the contravention. He has provided no explanation.
The fourth count claims a contravention of Order 13 made on 21 December 2010. It states:
Without reasonable excuse, the Father is not doing all things necessary to enable the children to receive phone calls from the Mother with the Mother rarely being able to contact the children at the times provided by the Orders.
No dates, times or places have been given for this alleged contravention.
Evidence
The mother relies on four affidavits, sworn on:
a)28 February 2011;
b)28 March 2011;
c)14 July 2011; and
d)22 August 2011.
The mother also relies on an affidavit by her solicitor, Ms Jamieson, sworn on 6 July 2011, setting out her attempts to contact the father on various occasions.
The mother’s counsel, Mr Jamieson, has also submitted two documents, each entitled “Contravention Summary”, setting out particulars of various breaches of a number of orders between 13 February and 1 August 2011.
The father filed an affidavit, sworn on 30 November 2011, which describes the children’s time with their mother from August 2011. He deposes:
9. At no times are the children discouraged from seeing their mother. [Ms Donovan] (the children’s mother) regularly keeps in contact with both children by phone almost every day and they (the children and their mum) arrange to meet whenever [Ms Donovan] demands it. Sometimes the children refuse and sometimes they agree to go. When they go [Ms Donovan] would turn up at our house and pick them up. Sometimes she dropped them of at the house otherwise I pick them up usually from her [business address omitted].
10. The children tell me that [Ms Donovan] is still insisting that they should live full time with her when they talk on the phone with her or when they see her on Mondays, Wednesdays and (at times on) Sundays…
13. I am doing my best to develop a positive relationship between the children and their mother but every time I call [Ms Donovan], she would either not pick up my calls or talk to me briefly in an abrupt manner and end her conversation with ‘talk to my lawyer’.[2]
[2] Affidavit of Mr Hargrave 30.11.2011 at paragraphs [9]-[10] & [13]
The father gave oral evidence. He said that on some Mondays the mother does not even turn up to pick up the children. He told the Court that the children would often express a reluctance to spend time with their mother, saying:
“All we do is just drive around with Mum. It’s such a waste of time. Why do we have to go?”
The father said that he told the children that they have to go and see their mother on Mondays, Wednesdays and some overnights. He said that [Y], the younger child, actually cried and looked very distressed.
In cross-examination by counsel for the mother, the father said that the children must see their mother, no mater what she does, at the end of the day she is their mother. He has said “You have to go” because they have refused to go. He denied that he had said “You have to go because the Court says so”. The father said that he wanted the boys to spend more time with their mother. He wanted them to enjoy their time together.
Submissions
Counsel for the mother submitted that the father should be dealt with in respect to repeated and continuing contraventions of Orders made in relation to parenting. He submitted that the father had:
a)intentionally failed to comply with the Orders;
b)made no reasonable attempt to comply with the Orders;
c)made no genuine attempt to comply with the Orders; and
d)had done nothing to encourage the children to spend time with the mother.
Mr Jamieson referred the Court to the decision of In the Marriage of O’Brien[3] in support of the proposition that a token or passive resistance is not sufficient to base a defence to a contravention. He also referred the Court to the decision of Hodgson J in the Supreme Court of New South Wales in Matthews & Millar[4], submitting that a contravention arises if there is a deliberate inducing in the child of an unwillingness to go to the other party. He submitted that this was the case in the present matter before the Court.
[3] (1993) 16 Fam LR 723; FLC 92-369
[4] (1988) 12 Fam LR 205
The Respondent submitted that the mother had said in evidence that the children had spent time with her but was denying that this was the case in her affidavits. He asked rhetorically how he could positively encourage the children to go with their mother and be “nagged” by her every Monday and Wednesday. He said that he was making an effort to make the children go to see their mother but what she does is make them sit in the car while she “nags” them. He said that he had always encouraged the children to contact their mother and see her. The mother either does not turn up to collect them or she nags them. The children are aged 14 and 11. He is not stopping them seeing their mother, it is the children themselves deciding not to go.
The relevant law
Contravention of parenting orders is defined by s.70NAC of the Family Law Act 1975. Where a person is bound by an order, he or she contravenes the order when he or she has:
a)intentionally failed to comply with the order; or
b)made no reasonable attempt to comply with the order (s.70NAC(a)).
An applicant in contravention proceedings must show that:
a)there is an order in existence; and
b)the respondent has contravened the order (s.70NEA(1)).
Once the contravention has been proved, it is up to the respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c). The applicant is not required to disprove that the respondent had a reasonable excuse.
Once the contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, the Court will decided whether to deal with the matter under Stage 2 of the three-stage regime prescribed by the Act, or whether Stage 2 does not apply (s.70NEA(4)). Stage 2 has both an educative and a compensatory function. It is appropriate where a party has not contravened the order before, although there may be occasions where the first breach may be of such seriousness that Stage 3 should be applied.
If the Court is satisfied that the Stage 2 procedure is appropriate, the Court may exercise all or any of the powers set out in s.70NEB(1). These powers are:
a)directing the respondent to attend a post-separation parenting program;
b)making a further parenting order compensating the applicant for the time not spent with the child or children;
c)adjourning the proceedings to allow a p[arty to discharge, vary or suspend the primary order;
d)ordering the respondent to enter into a bond in accordance with s.70NEC;
e)making an order for monetary compensation; and
f)making an order for costs against the respondent.
The Rules require that if a person is alleged to have contravened an order, the applicant must file an application setting out the alleged contravention and an affidavit stating the facts necessary to enable the Court to make the orders sought and attaching a copy of the order alleged to have been contravened (Rule 25B.02).
The Court must:
a)inform the respondent of the allegation;
b)ask the respondent whether he or she admits or denies the allegation; and
c)hear the evidence (Rule 25B.04).
Consideration
The mother has provided to the Court at the hearing two schedules setting out a number of alleged contraventions of Orders 6.1, 6.3, 13, 8, 2, 3.1, 3.4, 3.5 and 4, over a period from 13 February 2011 1 August 2011.
Only those allegations referred to in paragraphs [6] to [11] above can be considered. The other allegations remain just that, allegations. They have not been described in an application or an affidavit as prescribed by the Rules and they have not been put to the respondent for him to admit or deny as the Rules prescribe.
The Court can only make findings about the four contraventions alleged in the Application filed on 3 March 2011. No other Application of that nature has been filed.
The evidence relating to each of the four counts will be considered separately.
Count 1
The first count claims that the father did not bring the children to the collection point at [B] McDonald’s at 11:00 am on Sunday 13 February 2011. The evidence as set out in the mother’s affidavit of 28 February 201 is that the child [Y] told the mother that he was not going with her that day and the father later texted the mother to advising that neither child would be attending:
The kids refuse to go today and I cannot get [X] out of bed with me to discuss the way forward…
Yes but I cannot physically force the kids to do what they clearly feel distressed about…
They feel very distressed and do not want to go. You can ring them and discuss with them directly via [Y]’s phone since [X] lost his phone.[5]
[5] Affidavit of Ms Donovan 28.2.2011 at [3.5]
The father attended at [B] McDonald’s without the children. He attempted to speak to the mother but she did not wish to speak to him. He left. The mother then telephoned the boys. The child [Y] said “No I can’t see you today”. [X] said “I don’t know whether I can see you today mum. You need to ask Dad.”[6] The mother then deposed that she heard the father enter the room and [X] then said “Mum I don’t want to see you today”.[7]
[6] Ibid at [3.9]
[7] Ibid at [3.10]
The evidence is sufficient to find that the father, in not bringing the children to the meeting place, intentionally failed to comply with the order. The contravention in the first count has been established.
Count 2
As to the second count, the mother deposed that the father sent her a text message at 10.06 am on Sunday 20 February 2011, saying:
The kids tried to ring you both at the [business] and on your mobile because they refuse to go today…they said they are distressed at the fact they have to sleep over. They also sms’d you but there’s no reply. I tried to ring you also but you did not answer. Please ring me or [Y] to discuss way forward. [Mr Hargrave].[8]
[8] Affidavit of Ms Donovan 28.20.2011 at [4.1]
The mother travelled to the McDonald’s restaurant at 11:00 am. The father was there with [Y] and his new wife. The child said to her “No Mum I don’t want to go with you today Mum”. The mother said to the father that if he did not let the children go with her she would call the Police. The father said “Go ahead” and left with the child.[9]
[9] Ibid at [4.8]
The older boy [X] had not been brought to the meeting place.
The second count relates to an allegation of a contravention of Order 6.2 made on 11 February 2011. That Order provides for the mother spending time with the children “from after school each Monday until 8 pm”. There is no evidence that goes to a breach of that Order. The evidence is sufficient to establish a contravention of Order 6.1, but that is not what is claimed. Clearly, there has been an error. However, the applicant did not attempt to correct the error at any time before or during the hearing.
The contravention in the second count has not been established.
Count 3
The third count relates to 27 February 2011.
The mother claims that the father rang her at 10:13 on that day and said that the children were not going with her that day. The father passed the phone to [Y] who said “Mum I cannot go with you today”.[10]
[10] Ibid at [5.1]
The father was calling from the Police Station in [suburb omitted]. A police officer spoke to the mother, saying that the children did not wish to go with her. The police officer told her that [X] was not there but would telephone her later. The mother spoke to [X] when he rang and he said to her, amongst other things, “tomorrow Mum. I don’t want to see you today.”[11]
[11] Ibid at [5.3]
The evidence is sufficient to find that the Respondent intentionally failed to comply with the Order. The contravention in the third count has been established.
Count 4
The mother claims an ongoing contravention by the father of Order 13 made on 21 December 2010. She states:
Without reasonable excuse, the Father is not doing all things necessary to enable the children to receive phone calls from the Mother with the Mother rarely being able to contact the children at the times provided for in there Orders.
The Application does not specify any date or time. The mother’s affidavit sets out that she spoke to the children at 6.15 pm on 15 February 2011 and 6.09 pm on Thursday 17 February 2011. She did not speak to the children at all during the week of February 2011. She called [Y]’s telephone number on two occasions on 22 February and three occasions on 24 February but the phone was unanswered. She does not have the father’s home telephone number.
I am not satisfied that the allegation in Count 4 is adequately particularised to enable it to be answered by the respondent. Accordingly, Count 4 will be dismissed.
Reasonable Excuse
The father has given evidence that the children have refused to go to see their mother and he is powerless to force them to do so. It is up to the father to prove that he has a reasonable excuse for the contravention (s.70NEA(1)(c)).
There are essentially two categories of reasonable excuse provided by s.70NAE of the Act, although the list is not exhaustive.
First, a person has a reasonable excuse if he or she did not understand the obligations imposed by the Order and the Court is satisfied that the respondent ought to be excused (s.70NAE(2)).
Second, a person has a reasonable excuse if he or she believed on reasonable grounds that not allowing the child or children to spend time with or communicate with the other person was necessary to protect the health or safety of the person, the child or children, or someone else and the period of the contravention was not for longer than was reasonably necessary (s.70NAE(3)-(7)).
It has been established in Stevenson v Hughes[12], a decision of the Full Court of the Family Court, that parenting orders, as they are now called, impose a positive obligation to encourage the child to spend time with the other parent. As Fogarty J said, quoting Moore J, the trial judge:
It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect: ‘You see I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.[13]
[12] (1993) FLC 92-363
[13] (1993) FLC 92-363 per Fogarty J at 79,815-6
The father has not submitted that he did not understand the obligations imposed by the Orders. He is not legally represented in these proceedings, but he is an educated man who is a school teacher by profession.
Second, the father has not submitted or given evidence to show a belief on reasonable grounds that not allowing the children to spend time with their mother was necessary to protect their health of safety, or the health and safety of anyone else.
What he has put is that the children have shown a reluctance to spend time with their mother and he has been unable to persuade them.
I am not satisfied that the father has proved that he has a reasonable excuse for contravening the Orders referred to in Counts 1 and 3.
What Orders should be made
Now that three of the four alleged contraventions have been established and the father has not proved that he has a reasonable excuse for the contraventions, the Court will hear submissions as to what Orders should be made. In particular, the Court must consider whether or not to deal with the matter under Stage 2 of the three-stage regime prescribed by the Act.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 April 2012
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