DUNLOP & DURAN
[2019] FCCA 1025
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUNLOP & DURAN | [2019] FCCA 1025 |
| Catchwords: FAMILY LAW – Application – contravention – reasonable excuse not established. |
| Legislation: Family Law Act 1975 (Cth), ss.65DAC, 70NAA, 70NAE, 70NAF, 70NAC, 70NDA, 70NEA, 70NFA Evidence Act 1995 (Cth), s.55 |
| Cases cited: Taikato v R (1996) 186 CLR 454 Childers & Leslie (2008) FLC 93-356 Sathra & Sathra [2012] FamCA 112 In the Marriage of O’Brien (1993) FLC 92-396 |
| Applicant: | MR DUNLOP |
| Respondent: | MS DURAN |
| File Number: | PAC 632 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 29 March 2019 |
| Date of Last Submission: | 29 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd |
| Solicitors for the Applicant: | Sarah Bevan Family Lawyers |
| Counsel for the Respondent: | Ms Torrisi |
| Solicitors for the Respondent: | Family Law Practice |
ORDERS
That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 1 March 2017 in that:
(a)On 6 March 2018 in breach of order 2 and 21(a) made on 1 March 2017 the Respondent without reasonable excuse engaged the child [X] in psychological treatment without consultation with, or the consent of, the Applicant;
(b)On 13 June 2018 in breach of order 2 made on 1 March 2017 the Respondent without reasonable excuse applied to enrol the child [X] in School A High School and School B High School without the consent of the Applicant and has enrolled the child [X] in School A High School without the consent of the Applicant;
(c)On 2 September 2018 in breach of order 12(c) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
(d)On 5 September 2018 in breach of order 4 made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
(e)On 19 September 2018 at School C Primary in breach of order 4 made on 1 March 2017the Respondent without reasonable excuse refused to allow the Applicant spend time with the child [X].
(f)On 28 September 2018 in breach of order 6(b) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
The matter is listed for sentence at 10am on 22 May 2019.
IT IS NOTED that publication of this judgment under the pseudonym Dunlop & Duran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 632 of 2016
| MR DUNLOP |
Applicant
And
| MS DURAN |
Respondent
REASONS FOR JUDGMENT
On 29 March 2019 the Court heard the applicant father’s Application-Contravention, which the respondent mother pleaded “guilty but with reasonable excuse” to[1]. There were 6 counts in all.
[1] The plea was amended on the hearing of the contravention from not guilty to guilty but with reasonable excuse
The onus rests on the respondent, who pleads that she contravened the orders but had a reasonable excuse for doing so.
It became clear during submissions that the respondent relied upon s70NAE(2) of the Family Law Act 1975 (Cth) in respect of counts 1 and 2, and upon s70NAE(5) of the Act in respect of the remainder of the charges.
The Law dealing with Contraventions
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
The meaning of “contravened an order” is set out in s70NAC of the Family Law Act1975 (Cth):
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;
…
(Emphasis in original)
The respondent admitted the contraventions. Therefore, the onus of proof rests with her to establish that she had a reasonable excuse for the contraventions.[2]
[2] ss 70NDA(c); 70NEA(1)(c); 70NFA(1)(c)
The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
(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.
...
(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).
In Taikato v R[3] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…
… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.
[3] (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ
Section 70NAE was considered by Warnick J in Childers & Leslie[4] where his Honour said:
22… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
23.The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
29.… The question is not simply whether, viewed from some 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 s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
30. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
[4] (2008) FLC 93-356
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.[5]
[5] s55 Evidence Act 1995 (Cth)
It is important to state that simply because an assertion, general or otherwise, is made by a party it does not mean that the Court has to accept it – even in circumstances where it is not denied. Assertions are not evidence of fact.
The evidence of a fact is that which tends to prove it, something which may satisfy an enquirer that the fact exists.[6]
[6] Byrne QC, Heydon, Cross On Evidence, Butterworths, 3rd ed at [1.1]
Count 1
On 6 March 2018 in breach of order 2 and 21(a) made on 1 March 2017 the Respondent without reasonable excuse engaged the child [X] in psychological treatment without consultation with, or the consent of, the Applicant.
Relevantly, the orders the respondent concedes that she has contravened are worded as follows:
2. That parties shall have equal shared parental responsibility for [X].
21. Each parent shall keep the other informed of the following at times [X] is in their care:
a. Any medical illness suffered by [X] while in their care.
The wording of order 21.a, which was by way of the parties making a joint application for the Court to make orders by consent in accordance with the Terms of Settlement reached between them, is perhaps far from ideal, in that there appears to be a tautology in the term “medical illness”[7]. In any event, the respondent has pleaded guilty.
[7] According to the Macquarie Dictionary 3rd ed, “medical” means “of or relating to the science or practice of medicine” while “medicine” means “the art or science of restoring or preserving health or due physical condition, as by means of drugs, surgical operations or appliances, manipulations etc.” and “illness” means “a state of bad health, sickness”
The crux of the applicant’s complaint is that the respondent, without his consent and/or knowledge, arranged for the child to attend upon a psychologist and refused to provide him with relevant information as to the treatment which the child was receiving.
The respondent says that she had a conversation with the applicant to the following effect:
Applicant: “I think that [X] needs counselling”
Respondent: “Yes, I think that is a great idea. I will sort it then.”
Applicant: “Alright, please do that.”
What followed this conversation was an email from the applicant to the respondent which read:
Reflecting on our conversation this morning, I shall meet with you at school… so we can both speak with Ms D or arrange with her another time to discuss [X].
Both the conversation and the email occurred on Saturday 20 May 2017. There is no evidence as to who “Ms D” is, but presumably she is someone of relevance at the child’s school. The respondent then gives evidence that she spoke to the school counsellor who advised her that permission of both parents was required so that the school counsellor could meet with the child. The respondent then had a conversation with the child where she told her that the applicant’s permission was needed for her to see the school counsellor, to which the child respondent “Well I am not going because he will know what I’m talking about.” The respondent did not provide any evidence as to further conversations with the child about the issue and more importantly any conversations with the applicant about the child’s apparent refusal to see the school counsellor.
What the respondent did was she attended upon her general medical practitioner in August 2017 and obtained a referral so that the child “would be able to obtain Medicare rebates”. She did not inform the father that she was going to ask for a referral, or that she had obtained a referral. The respondent then further states:
I am not required to obtain a referral to consult with a Psychologist, however, if I did not obtain a referral, I would be unable to get financial assistance to pay for these sessions. [X] was not diagnosed with a medical illness and therefore I did not inform Mr Dunlop however, [X] needed assistance to ensure that [X] would speak freely in counselling I did not inform Mr Dunlop at that time.
The submission was made by the respondent’s legal representative that such evidence was evidence of the respondent’s reasonable excuse, in that it proved that “she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it.”
Except for the assertion that the child was not diagnosed with a “medical illness” there is no evidence in the respondent’s case as to her understanding of the obligations imposed on her by the order, what her understanding of the term “medical illness” was at the relevant time or other relevant matters. No submissions were made as to the meaning of the term “medical illness”, just that the respondent did not believe the child was suffering from a “medical illness”.
There was no evidence in the respondent’s case nor were any submissions made as to why the respondent had a reasonable excuse in respect of the contravention of the order for equal shared parental responsibility in the circumstances of the admitted contravention.
The respondent has not established a reasonable excuse in respect of Count 1.
Charge 2
On 13 June 2018 in breach of order 2 made 1 March 2017 the Respondent without reasonable excuse applied to enrol the child [X] in School A and School B without the consent of the Applicant and has enrolled the child [X] in School B High School without the consent of the Applicant.
Relevantly, the orders the respondent concedes that she has breached are worded as follows:
2. That parties shall have equal shared parental responsibility for [X].
Section 65DAC(2) provides that an order for equal shared parental responsibility is taken to require the decision about a major long-term issue in relation to the child to be made jointly by those person who are to share parental responsibility.
The respondent’s evidence is that the parties had a discussion in January 2018 in respect of which schools the child might be enrolled in for the start of her high school education in 2019. There were then further discussions and/or communications between the parties about possible schools for the child.
The respondent’s evidence is that on or about 6 June 2018, she notified the applicant by email that an application for one of the schools (School B[8]) the parties had discussed needed to be lodged by 8 June 2018. The respondent’s evidence is that the applicant responded saying he was away until 10 June 2018 at the earliest. The respondent then sent in the application and advised the respondent that she would do so.
[8] Referred to as School B High School in the Application - Contravention
However, the applicant’s email of 6 June 2018 (sent at 7.06am) reads as follows:
Good morning Ms Duran
I am currently out of Sydney and will not be back until Sunday at the earliest. I again ask for you to send through any and all information you have so as I may review.
If School B High School have stated as per your comments below might I suggest you forward an email asking for written confirmation. This would allow for both of us to be involved in this important process for [X]. Please may I request you CC me in on this email and provide me with the name and contact details of the person who called you.
I am confident they would be willing to extend the deadline as any application would need both signatures of [X]’s parents as per the final orders.
As stated on numerous occasions I am fully committed to having a positive and open dialogue which benefits our daughter.
In light of the applicant’s reply of 6 June 2018 and proposed way forward, which does not appear to have been responded to, it was not reasonable for the respondent to simply make the application for enrolment herself. It is a decision which was not made jointly and the Court is not satisfied that the respondent made a genuine effort to come to a joint decision about the issue.
In respect of the second leg of the contravention, namely that the respondent applied to enrol the child and did enrol the child in School A High School High School without the consent of the applicant, the Court has already referred to the respondent’s evidence about the parties’ discussions in early 2018.
The only other evidence in the respondent’s case is as contained in paragraph 55 of her affidavit which reads as follows:
In or about September 2018, I received an ‘Authority to Enrol Year 7 2019’ from School B High School and proceed to complete and enrolled [X] in School A High School.
There was no evidence in the respondent’s case nor were any submissions made as to why the respondent had a reasonable excuse in respect of the contravention of the order for equal shared parental responsibility in the circumstances of the admitted contravention, pursuant to s70NAE(2). There is no evidence that the respondent did not understand her obligations pursuant to the order for equal shared parental responsibility. There were no submissions made as to how the admitted contravention might have been a reasonable excuse within a circumstance other than as set out in subsections (2), (4)-(7) of s70NAE.
The respondent has not established a reasonable excuse in respect of Count 2.
Counts 3 to 6
On 2 September 2018 in breach of order 12(c) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
On 5 September 2018 in breach of order 4 made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
On 19 September 2018 at School C in breach of order 4 made on 1 March 2017the Respondent without reasonable excuse refused to allow the Applicant spend time with the child [X].
On 28 September 2018 in breach of order 6(b) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
It was submitted on behalf of the respondent, that she made the child available (except on the day she was sick being 19 September 2018) and that it was the child’s refusal to go which amounted to the reasonable excuse. It was not explained how the child’s refusal to go amounted to a reasonable excuse within the meaning of s70NAE(5) which is the sub-section the respondent relied upon in respect of her reasonable excuse argument. The only matter that was addressed in response to questions from the Bench was that the Court should have regard to Annexures to the respondent’s affidavit, which were said to be handwritten by the child and dated 2017.
2 September 2018
The respondent asserts that she attended the shopping centre for the purposes of facilitating time in accordance with the order, but that the child said to the father “I don’t want to spend time with you today.” The applicant says that there was more to it than the child simply saying she did not want to spend time with him that day, and that what occurred was the respondent saying to the applicant in front of the child, after informing him that she did not wish to spend time with him that “It’s [X]’s choice... you can’t force her to spend time with you.” It is clear that what occurred between the parties was not a pleasant experience for the child.
What is also clear is that on the evidence in the respondent’s case, she did not, make reasonable attempts to comply with the order. There is no evidence whatsoever of the respondent encouraging the child to spend time with the father on that occasion. The respondent was obliged to comply with the order.
5 September 2018
Relevantly order 4 provides:
That [X] spend time with the Father during [X]’s school terms from after school on Wednesday until before school Monday each alternate week commencing on Wednesday, 8 March 2017…
The respondent states that on Monday, 3 September 2018, she attended at the child’s school to tell them about the events of the Sunday just gone. The respondent says that the school principal indicated to her that she would invite [X] into the office and ask her if she wanted to go with the applicant.
On Wednesday, 5 September 2018, the applicant attended the school at 12.30pm to discuss changeover which was to occur that afternoon. This followed on from the emails which the respondent sent to the applicant on 3 September 2018, which read:
… I will do all that I can to encourage her to spend time with you but unfortunately I don’t think it is going to happen this Wednesday. Ill (sic) be at school on Wednesday afternoon just in case she refuses to go. I am mindful that it will not help [X] if she refuses to go with you and there is another confrontation.
The applicant responded[9] by saying:
I’ll be picking up [X] as stated in the orders and your presence is not required at the school pick up. If [X] is not present at school or you convince her not too (sic) come with me this will be a further contravention of the final orders.
[9] Email dated 5 September 2018
There was no evidence in the respondent’s case about any conversations she might have had with the child between the incident on the Sunday and the Wednesday pick up at school.
The applicant says that he observed the respondent at the school earlier in the day when he went to speak to the principal and also later in the day when he came to pick up the child. He says that the respondent was outside the office reception area as he entered the building to pick the child up from school.
It cannot be asserted, in the Court’s view, that the child not attending is per se related to her health or safety or to that of any other person.[10] Despite the difficulties which the respondent deposes to in having the child go with the applicant, the respondent does not have a reasonable excuse in respect of that refusal.
The reason why the law may not look benevolently upon what the mother describes as her ‘precarious position’ is of course, founded in the fact that if children were able to determine whether they attended pursuant to an order which binds their parents to obligations in respect of them, then orders would never have any utility.[11]
[10] See also Sathra & Sathra [2012] FamCA 112 at [82]
[11] Ibid at [86] per Murphy J
The difficulty however, is that the applicant himself left without the child on 5 September 2018, after coming to an agreement with the school principal that if the child did not wish to leave with him, he would attempt to speak to the respondent away from school. The applicant did however email the respondent to discuss how to move forward. The responses were not helpful, and the child did not spend time with the applicant in accordance with the orders, despite the applicant providing alternatives for further changeover.
19 September 2018
The child was not at school on 19 September 2018 and otherwise not made available to spend time with the applicant. The respondent says she was sick on this occasion. There is no evidence as to what the illness was nor why it prevented the child from spending time with the applicant. Indeed, there is no evidence as to why the contravention was necessary so as to protect the health and safety of the child or any other person, arising out of the child’s alleged illness.
28 September 2018
The applicant deposes to a telephone conversation he had with the child on 27 September 2018, where she told him that she did not want to spend time with him and that it was her “choice”. The child further said to the applicant, in response to him explaining why it was important to spend time together, words to the effect “I don’t care, me and mum have made plans… I am not having this argument, I am not coming.”
The applicant attended the child’s school to pick her up in accordance with the orders. She had been signed out early by the respondent, and the applicant observed the respondent with the child driving away from the school at approximately 2.45pm.
The respondent asserts that the applicant “had not shown up to pick her up from school”. This is in the circumstances where the respondent had been present at the child’s school for the day and left with the child early and prior to the end of the school day, and consequently, prior to the time that the child was due to spend with the applicant pursuant to the orders. The respondent further says “Regardless, even if Mr Dunlop was present, [X] was maintaining her position that she refuses to spend time with Mr Dunlop.”
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[12]
[12] In the marriage of O’Brien (1993) FLC 92-396
Furthermore, parties have an obligation to comply with Court orders. It is not open to a parent to say to a child words to the effect “you go if you want to, if you wish to go you go, or you make up your own mind.” It is clear that the respondent considered that it was the child’s choice as to whether or not she spent time with the applicant.
There was no evidence of the respondent’s beliefs[13] that her actions in not allowing the child to spend time with the applicant were necessary in order to protect the health and safety of a person such that the Court might find that she had reasonable grounds to believe so.
[13] And the basis for those beliefs
Furthermore, there was no objective evidence in the respondent’s case that the contraventions were necessary to protect the health and safety of a person, nor indeed that the period was not longer than was necessary for such protection.
The respondent has not established a reasonable excuse in respect of Counts 3 to 6.
Conclusion
The Court finds that the mother has failed to establish, on the balance of probabilities, a reasonable excuse for the admitted contraventions.
The Court therefore makes orders as set out at the forefront of these Reasons.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 30 April 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Breach
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Consent
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Remedies
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Sentencing
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