Duarte and Morse

[2019] FamCA 390

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2019] FamCA 390

FAMILY LAW – ORDERS – Contravention – Where the mother asserts 10 counts – Where the father does not admit – Whether the counts can be made out – Orders. 

Family Law Act 1975 (Cth) div 13A of Pt VII and div 1 of pt XIIIA; ss 70NAC, 70NAE, 70NAF, 112AB

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 20 June 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Berman J

HEARING DATE: 11 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Amended Application for Contravention filed 21 May 2018 be dismissed.

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 Duarte & Morse 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 SYDNEY

FILE NUMBER: SYC 737 of 2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Duarte (“the mother”) filed an Amended Application for Contravention of orders on 21 May 2018 (“the application”).

2. Mr Morse (“the father”) is the respondent.

3. The application alleges 10 counts, 7 of which allege a breach of order 3 of final orders made 1 December 2017 (“the final orders”) and the remaining 3 which allege a breach of order 14(a) of the final orders.

4. The final orders determined the parenting arrangements for the three children of the parties in circumstances where from June 2014 the children were taken from the primary care of the mother and placed into the father’s care by the Secretary of the Department of Family and Community Services (“FACS”).

5. The mother alleges that the father has failed to comply with the particular orders and that in respect of each count the father did so without reasonable cause or excuse.

The hearing

1. The parties both appeared as self-represented litigants. The mother has effectively represented herself throughout the entirety of the proceedings whereas the father has only done so since his filing of a Notice of Address for Service in February 2019.

2. By Amended Notice of Appeal filed 4 June 2018 the mother appealed against the final parenting and property settlement orders made on 1 December 2017. On 6 June 2019 the mother’s appeal was unsuccessful as to the parenting orders save and except that the order of 1 December 2017 was amended to include an order that “the children live with the father.” I assume that the mother’s amended application was not listed for hearing pending the outcome of her appeal.

Background

1. The parties commenced cohabitation in 2003 and married in 2004. The three children of the marriage were respectively born in 2006, 2010 and 2012.

2. The parties separated in September 2013. The father became aware that the mother had commenced a new relationship. He left the former matrimonial home in October 2013 leaving the children in the mother’s primary care.

3. The parties were not able to agree the arrangements for the children to spend time with the father and he filed an Initiating Application on 12 February 2014.

4. The proceedings were considered complex as indicated by the matter being placed in the Magellan list.

5. In June 2014 FACS became involved in the parenting arrangements for the children and following concerns that the children may have been left alone in the company of the mother’s partner, removed the children from her care and placed them with the father.

6. Interim orders provided for the father to have sole parental responsibility for the children and for the mother to spend time with them supervised at a contact centre but in the absence of her partner.

7. The mother was restrained from attending at the children’s residence and their schools.

8. The mother spent time with the children on an ad hoc basis subject to the availability of the supervisor. She did not see the children from November 2015 notwithstanding that in April 2016 orders were made for the mother to spend unsupervised time with the children provided that she give an undertaking that they would not come into contact with her partner. There were other conditions included in the undertaking however it appears that the mother found them unpalatable and did not sign it.

Application for contravention

1. For ease of reference the following counts are attributed to the corresponding paragraphs in the said Amended Contravention Application:

   ·Count 1 – paragraphs 6 and 7 of the application

   ·Count 2 – paragraphs 8 and 9 of the application

   ·Count 3 – paragraphs 10 and 11 of the application

   ·Count 4 – paragraphs 12 and 13 of the application

   ·Count 5 – paragraphs 14 and 15 of the application

   ·Count 6 – paragraphs 16 and 17 of the application

   ·Count 7 – paragraphs 18 and 19 of the application

   ·Count 8 – paragraphs 20 and 21 of the application

   ·Count 9 – paragraphs 21 and 22 of the application

   ·Count 10 – paragraphs 23 and 24 of the application

2. The mother proceeded with counts 1 to 10 inclusive. Counts 1 to 6 inclusive are consistent in that they allege a breach of order 3 of the final orders but on different dates. The gravamen of the underlying particulars of breach are the same namely that “without reasonable excuse, the father did not notify the mother of changes to schooling arrangements with reasonable sufficiency”.

3. Count 7 can be described as an alternative catch all count which covered the period from 8 March 2018 to 30 April 2018.

4. Count 8 and 9 allege a contravention of order 14(a) of the final orders with the same particulars namely that on 24 April 2018 (count 8) and 27 April 2018 (count 9):

   Without reasonable excuse, the father abused his discretion in not permitting the mother to have contact with [F School] to the degree that was reasonably necessary in relation to contractual issues.

5. Count 10 was also considered by the mother to be a catch all count but she concedes that there is a likely error in the commencement date of 8 Match 2018. Whilst not conceding the point in relation to count 7, the mother does concede given the error count 10 is not able to be sustained. In the absence of evidence that supports the contention that the father was in “continuous commission” of a breach I propose to dismiss count 10.

The law

1. It is div 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention of orders made in respect of children and div 1 of pt XIIIA that deals with an application for contravention of orders and obligations that do not affect children.

2. The following considerations apply to counts 1 to 9 inclusive of the application.

3. Subdivisions C to F of div 13A of pt VII provides for the orders that are available to the court that can be made in instances where:

   a)The contravention has been alleged but not established (sub-div C);

   b)The contravention is established but reasonable excuse for the contravention is found (sub-div D);

   c)The contravention is found to have occurred without reasonable excuse and a contravention is “less serious” (sub-div E);

   d)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

4. The father did not admit any of the counts.

5. For reasons that will become apparent, I consider that any contravention that is found to have occurred without reasonable excuse should be considered as “less serious”.

Section 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…

Section 70NAE – Meaning of reasonable excuse for contravening an order

(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 not limited to, the circumstances set out in (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)…

(5)…

(6)…

(7)…

Section 70NAF – Standard of proof

(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

(3)The court may only make an order under:

(aa)paragraph 70NEB(1)(da); or

(ab)paragraph 70NECA(3)(a); or

(a)paragraph 70NFB(2)(a), (d) or (e); or

(b)paragraph 70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered less serious.

2. In respect of a more serious contravention the provisions are to be found at s 70NFA.

3. Rule 21.08 of the Family Law Rules 2004 (Cth) outline the procedure for hearing of an application for contravention orders.

Rule 21.08 – Procedure at hearing

At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegation;

(c)hear any evidence supporting the allegation;

(d)ask the respondent to state the response to the allegations;

(e)hear any evidence of the respondent; and

(f)determine the case.

1. As discussed, all of the counts were read to the father and it was his clear response that he denied each and every allegation in respect of counts 1 to 9 inclusive.

Section 112AB – Meaning of contravene an order

A person shall be taken for the purposes of this Part to have contravened an order under this Act 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)in any other case he or she has:

i)intentionally prevented compliance with the order by a person who is bound by it;

ii)aided or abetted a contravention of the order by a person who is bound by it.

1. The meaning of reasonable excuse for contravening an order is set out in s 112AC of the Act.

Evidence and submissions in respect of the various counts

1. The mother relies upon her affidavit filed 4 May 2018. She also tendered an email and other electronic communication passing between the parties and the children’s school; the import of which is highlighted by the extracts as appear in the mother’s affidavit.

2. The father did not seek to cross-examine the mother and accordingly her affidavit was both before the court and read into evidence.

3. The respondent did not file any affidavit material and did not give evidence save those two email communication between the parties and the children’s school not dissimilar to the mother’s documents which were tendered by consent (exhibit “2”).

4. The father contends that even at its highest the mother has not presented any evidence which would enable the court to find on the balance of probabilities that any of the remaining counts have been proven.

Remarks of the trial judge relevant to orders 3 and 14(a) of the final orders

1. The father sought from the trial judge that he have sole parental responsibility for the children. His Honour found that he had held that responsibility since July 2014. The mother did not seek an order for parental responsibility but rather in the absence of an order, the parental responsibility would be determined by the parties’ statutory rights pursuant to s 61C of the Act.

2. The trial judge considered the level of communication that existed between the parties and the likelihood that they would each be able to sustain a level of respect for the other’s views and capacity to parent the children in respect of long term issues such as schooling, health, religion and extra-curricular activities.

3. His Honour found:

   670. In this case I conclude there is no reasonable prospect that the mother and father would be able to negotiate and agree upon those matters. I am satisfied the mother has no regard for the father’s ability to think about such matters at an intellectual level which she would see as acceptable. Consequently, I predict she would disregard any view he held on many matters. Further, the mother is constrained and/or motivated to view all such matters through the lens of her religious conviction and belief. The father is not so constrained and so they are destined to be in conflict. An example of an important area of the children’s health, which I am satisfied the mother and father would be implacably opposed, relates to the immunisation of the children. The mother is a conscientious objector to immunisation, her view being formed upon the view and information shared with her by [the mother’s partner].

   671. Having considered the matter thoroughly in the light of the evidence in this case I conclude that an order for equal shared parental responsibility in this matter would be unworkable and lead to the children being exposed to continued palpable parental conflict and probably further court proceedings. Such an order would not be in the best interests of the children.

4. His Honour ordered that the father have sole parental responsibility subject to an obligation that:

   (3) Whenever the father makes any decision which changes some aspect of the children’s long term arrangements such as schooling, or makes an important decision about some aspect of their health, he is to notify the mother of same in writing.

5. His Honour summarised the basis upon which the orders were to be made at [676]:

   I accept that she would provide the children with warmth and tactile interaction. I am satisfied the children love their mother as much as any child could do so. Those conclusions would usually be expected to ground a conclusion that the children would significantly benefit from being able to spend time with and/or live with their mother. However, the evidence of the harm which may be occasioned to the children of spending time with their mother is beyond all reasonable bounds of alternate conclusion. Those harms have been identified under the considerations herein of “unacceptable risk” to the children which I conclude would occur if they have time with or fall under the authority or control of [the mother’s partner]. Additionally, there is the unfortunate conclusion that the mother cannot be relied upon to ensure the children are not further exposed to parental conflict because she has not complied with the orders of the Court. …

6. The trial judge also considered the potential harm that could arise from the mother’s unregulated involvement with the children’s school as follows:

698. The evidence in this case satisfies me that the mother conducted herself in a manner which was detrimental to the children’s best interests when she attended the school for [a subject child’s] school fete. At that time all three children were present with her. She exposed them to unnecessary tension between herself and the father and caused the situation to escalate by her words and actions and by calling the police to attend. She should not be allowed to so embarrass the children or expose them to such circumstances in the future.

699. In addition to the school fete incident the evidence discloses other confrontations the mother has had with the school which all the children attend or will likely attend.

700. The children’s school should be a sanctuary for them from parental conflict or possible embarrassment arising from a parent’s actions at the school or with school authorities. Any such events have the potential to bring the children to the attention of other children who could taunt or bully the subject children armed with such information.

701. As a consequence of the above I consider that it is necessary for the protection of the children and incidentally therefore in their best interests that the mother is restrained from attending at the children’s school otherwise then in specific circumstances which I propose to set out in the orders.

702. The father needs to be able to prevent the mother attending the children’s school in the event he becomes aware of behaviour exhibited by the mother at or to the children’s school which he considers is contrary to their best interests. I propose to craft such an order.

1. The mother appealed orders 14 to 16 in ground 22 of her Notice of Appeal that argued that the trial judge had:

   [A]cted beyond the jurisdiction conferred on the Court, and/or abused his discretion, and/or erred in law by violating the common law principle of autonomy, and/or erred in law by not reading down his powers in light of the states’ retention of contract law under the Constitution. …

2. The mother argued that the injunctions in orders 14 to 16 were invalid because they interfered with contractual relationships.

3. Whilst not abandoning the assertion that the orders were constitutionally invalid, she did not proceed to press that argument during the contravention hearing.

4. The mother strongly contends that orders 3 and 14(a) “must not be interpreted as conferring upon the father unfettered discretion, but must be ‘read down’ against an objective standard of ‘reasonableness’.”

5. The mother argues that unless so confined it would be tantamount to the court authorising the father to act unreasonably and therefore contrary to the children’s best interests.

6. As such the mother contends that there must be some limit or standard of reasonable conduct that underpins parenting orders but in this case orders 3 and 14(a).

7. The mother’s concern arises from the father’s advice that he had terminated the enrolment contract between the parties and the children’s school. That standard of “reasonableness” should require the father to do more than simply notify her and should provide a mandatory obligation on the father to provide documents to the mother that set out the new schooling arrangements pursuant to the new contract. Similarly the mother considers that order 14(a) places the father under a positive obligation to give his written consent or invitation for the mother to contact the children’s school where it is reasonable to do so particularly when the mother is advised of the unilateral termination of the contract by the father.

1. The issue was raised tangentially in ground 22A of the mother’s appeal which states:

   His Honour denied procedural fairness by not prospectively disclosing to the mother or relevant third parties the Court’s motion for orders that interfere with contractual or other relationships between the mother and third parties.

2. The Full Court was not able to see what difficulties would arise from the orders in respect of the contract of enrolment of the children at their school in circumstances where no evidence of the original contract had been presented.

3. The Full Court did not accept that the orders in any way interfered with contractual relationships.

Evidence and submissions

Counts 1 to 7

1. The applicant sought information from the F School concerning her eldest son. She states that the principal of the school refused to provide “requested documents” that appeared to relate to the enrolment contract signed by the parties. The principal’s response dated 7 March 2018 is in the following terms:

   Should there be an issue that you need to raise with the School, I would ask that you first seek permission to do so from the father of your children as per point a) in Section 14 and then direct such requests to myself as the Principal.

2. The principal had been provided with a copy of the final orders and considered that order 14 prohibited the mother from approaching or having contact with the children’s school other then as provided in the orders.

3. On 8 March 2018 the father advised the mother that:

   I am hereby notifying you (Mother) that [the eldest child’s] contract of enrolment with F School is to be terminated!, and a new enrolment contract will commence with me (Father) as sole signatory upon termination of the old contract.

4. There after there was a plethora of email communication between the parties and the principal of F School concerning the termination of the previous contract of employment in favour of a new contract between the father and the school.

5. The mother claims that she had not been notified by the school and by email to the father’s solicitors on 23 April 2018 identified categories of documents that she considered should be provided in order to “meet the threshold of Order 3”.

6. By response on 24 April 2018 the father was not prepared to permit the mother to contact the school and any information that was required in relation to the children’s education would be provided by him.

7. A more expansive explanation of the father’s position was contained in an email sent to the mother on 25 April 2018.

8. The mother’s response was that she considered the father’s reply as inadequate and foreshadowed that she was considering an Application for Contravention.

Counts 8 and 9

1. The mother relies upon the response by the father’s solicitors of 24 April 2018 indicating that they did not have instructions in relation to the matter and her subsequent request to the father seeking his permission to “communicate with the school about the contract or any “related issue.”

2. Count 9 is based upon the father’s Reply of 27 April 2018 where he refuses to provide the documents as required, that he is not intending to undertake a mediation process and does not agree that his refusal to allow the mother to contact the school is an “abuse” of the orders.

Conclusion

1. The mother does not argue that the father failed to advise her that the original enrolment contract had been terminated and he had entered into a new contract with the school. It may be that the catalyst for the father’s decision was as a result of the mother’s request for information from the school but the gravamen of the order is for the father to advise the mother where there are changes in the long term arrangements affecting their schooling. The father did this.

2. The refusal by the father to provide the documents as sought by the mother cannot be considered as a breach of the order. There is no consideration of reasonableness in terms of any underlying decision making by the father. He has an obligation to advise the mother if he changes some aspect of the children’s long term arrangements. He did so. It is clear from the judgment that the best interests of the children were to be served by the father having sole parental responsibility for the children and that there not be any process of consultation before a significant change in the children’s circumstances is made. The mother may not have liked the advice provided by the father but she clearly received it.

3. It is also an important consideration that at no stage did the mother present to the court evidence of either the original or subsequent contracts of enrolment.

4. I find that the mother has not established on the balance of probabilities a breach by the father of counts 1 to 7 inclusive.

5. Counts 8 and 9 concern order 14(a) which provides a strict prohibition on the mother having any contact with the children’s school or personnel other than as provided in sub paragraphs (a) to (c) inclusive.

6. The order does not provide for dialogue or negotiation between the parties.

7. The judgment considered that the best interests of the children were served by the mother’s ability to engage with the children’s school being the subject of strict condition. One of the conditions is where the father provides his written consent or invitation.

8. Order 14 does not prevent the mother from engaging with the school. She is able to attend end of year speech days or presentation days and order 14(c) enables the mother to advise the father of her intention to attend the school “when parents are invited or expected by the school to attend for a specific event”. The father is obliged then to consider his consent for that specific attendance.

9. The mother’s assertion that order 14(a) is predicated upon an obligation on the father to provide his written consent or invitation to contact the school is misguided. It is a matter for the subjective discretion of the father and in the circumstances as existed in April 2018 he was not prepared to provide his written consent.

10. I do not consider that the mother has established on the balance of probabilities a breach of counts 8 and 9.

11. Noting the effective abandonment of count 10 I propose to dismiss the Amended Contravention Application.

12. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 June 2019.

Associate: 

Date:  20 June 2019