EASTON & EASTON

[2015] FCCA 1269

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTON & EASTON [2015] FCCA 1269

Catchwords:
FAMILY LAW – Children – contravention – parenting orders – contravention of parenting orders – where father claims that mother contravened parenting orders on five occasions – where two counts denied – where no prima facie case found in respect of one count – where three counts admitted – where mother claims reasonable excuse for contraventions – where reasonable excuse established in respect of two counts – where respondent found to have contravened orders on two occasions without reasonable excuse – where respondent claims that actions constituting the contraventions were necessary to protect her health or safety or the health or safety of the children – where interim family violence order made on 6 June 2014 – where respondent found not to have reasonable grounds for belief that actions constituting the contraventions were necessary to protect the health or safety of the children on two occasions.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF, 70NEA, 70NEB

Federal Circuit Court Rules 2001, r.25B.04

Cases cited:
Caballes & Tallant [2014] FamCAFC 112

Applicant: MR EASTON

Respondent: MS EASTON

File Number: SYC 6515 of 2013

Judgment of: Judge Scarlett

Hearing date: 11 May 2015

Date of Last Submission: 11 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Solicitor for the Applicant: Mr Khedr

Solicitors for the Applicant: Cambridge Law

Solicitor for the Respondent: Ms Kaiti

Solicitors for the Respondent: CBD Legal

ORDERS

1. The count in the Application – Contravention filed on 20 June 2014 alleging that on 10 May 2014 the Respondent contravened Orders (2) and (4) made on 3 February 2014 is dismissed.

2. The Respondent mother has established a reasonable excuse for contravening on 17 May 2014 Order (2) made on 3 February 2014.

3. The Respondent mother has established a reasonable excuse for contravening on 31 May 2014 Order (2) made on 3 February 2014.

4. The Respondent mother did on 7 June 2014 without reasonable excuse contravene Order (2) made on 3 February 2014.

5. The Respondent mother did on 14 June 2014 without reasonable excuse contravene Order (2) made on 3 February 2014.   

IT IS NOTED that publication of this judgment under the pseudonym Easton & Easton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6515 of 2013

MR EASTON

Applicant

And

MS EASTON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of the parties’ three children for a finding that their mother has, on five separate occasions, contravened parenting orders that were made by consent on 3 February 2014. Another five allegations were not pressed, as the father’s solicitor told the Court at the commencement of the hearing. The mother initially denied two of the five applications that were pressed and admitted the other three, claiming that she had a reasonable excuse for each one.

2. A short summary of the father’s case is that between 10 May and 14 June 2014 the mother refused to allow him to spend time with the parties’ three children, X, who was born on (omitted) 2009, Y, who was born on (omitted) 2010, and Z, who was born on (omitted) 2012.  

Law and Procedure

1. The meaning of the word “contravened” in the sense of contravening a court order is defined in s.70NAC of the Family Law Act 1975 (Cth), which says, relevantly:

   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;

2. The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities (s.70NAF(1)).

3. If the Court is satisfied that a person has contravened an order, that person may still establish that he or she had a reasonable excuse for the contravention (s.70NEA(1)(c)). Again, the standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)).

Evidence

1. The father relied on his affidavits of 18 June and 13 November 2014. His evidence is that he did not spend time with the children on the weekends of 10 and 11 June, 17 and 18 May, 31 May and 1 June, 7 and 8 June, and 14 and 15 June 2014.

2. The father said in his affidavit that he did spend time with the children on 24 May, but only after the mother demanded the sum of $700.00 from him. He was only able to withdraw $400.00 from an automatic teller machine. He said that the mother then not only refused to hand over the children but then attempted to drive off. An altercation ensued, in which he complained that the mother assaulted him by scratching his neck and hitting and punching his face. The mother called the police.

3. The father deposed that he has not seen the children since Sunday 25 May 2014.

4. The father gave oral evidence with the assistance of an interpreter in the (omitted) language. He was cross-examined by the mother’s solicitor, Ms Kaiti. He was somewhat vague about the dates of certain events, pointing that he is unable to write. He did not record any of the dates of the alleged contraventions but said he remembered them. The father’s evidence about the claim of a contravention on 10 June was vague as far as the date was concerned, and eventually he agreed that certain incidents occurred “but not on the 10^th”. As to the following Saturday, 17 May, and the other Saturdays when he said he went to the approved changeover location at the McDonalds Restaurant, he said that he went every Saturday and would always wait, sometime for up to two and a half hours.

5. The father was adamant in his evidence that on 24 May the mother attacked him. He denied that he attacked her.

6. The mother relied on her affidavits of 19 October and 15 December 2014. Her evidence is that she was concerned about the children’s safety, as the child Z returned home from spending time with his father on 5 May 2014 with a huge mark on his face, which the other two children claimed was caused by the father hitting the child on the face.

7. The father subsequently told her that the child’s injury was caused when he fell on concrete.

8. It was the mother’s evidence that, notwithstanding her fears for the children’s safety in the care of their father, she prepared the children to see him on 10 May 2014, but he called her just prior to changeover at around 2:15 pm and cancelled his visit.[1]

   [1] Affidavit of Ms Easton 15.12.2014 at paragraph [29]

9. The mother conceded in her affidavit at paragraph [32] that she did not deliver the children to changeover on 17 May 2014 because she was worried about their safety.

10. The mother said that she took the children to changeover on 24 May because the father had telephoned her and threatened her that he would have the children removed from her if she did not allow him to see them. She stated that as she tried to drive away the father put his hand inside the car and turned off the ignition and then physically attacked her.

11. The mother went on to depose that on 27 May 2014 she attended at the Registry of the Fairfield Local Court and applied for an Apprehended Domestic Violence Order.

12. The mother stated that she did not make the children available for contact on 31 May because she feared for the children’s safety.

13. On 6 June 2014 the Fairfield Local Court made an interim Apprehended Domestic Violence against the father.

14. The mother deposed that she did not make the children available for contact on 7 June or 14 June 2014 because she had fears for their safety.

15. The mother further deposed in her affidavit of 15 December 2014 at [74] that, after a defended hearing before a Magistrate on 8 December 2014, the Fairfield Local Court made a Final Apprehended Domestic Violence Order against the father, which was to be in force for a period of 18 months.

16. The mother gave oral evidence and was cross-examined by the father’s solicitor, Mr Khedr. She maintained her position that she feared that the father posed a risk to the children.

The Allegations

1. The allegations are that on the dates of 10 May 2014, 17 May 2014, 31 May 2014, 7 June 2014 and 14 June 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children. Each of the five allegations contends that, in doing so, the Respondent contravened Orders (2) and (4).

2. Order 2 states:

   That the father spend time with the children each weekend from 3pm Saturday to 7.30 Sunday commencing 8^th February 2014.

3. Order 4 states:

   That the father collect the children from McDonalds (omitted) and return the children at the completion of the period to McDonalds (omitted).

Prima Facie Case

1. The procedure to be followed at a hearing of a contravention application is set out in rule 25B.04. The rule does not refer to a need to establish a prima facie case in respect of each allegation, but it is clear from the decision of the Full Court of the Family Court in Caballes & Tallant[2] that such a requirement exists. However, the judgment of Ryan J at [43] clearly shows that a failure to allow a party to make a submission as to whether or not a prima facie case existed would be an error on the part of the trial judge.

   [2] [2014] FamCAFC 112

2. I heard submissions from the parties’ solicitors after the conclusion of the evidence of the father as to whether a prima facie case had been made out. I held that I was not satisfied that a prima facie case had been made out in respect of the allegation of a contravention of the Orders on 10 May 2014, due to the vague and imprecise evidence of the father about the date, as his oral evidence contradicted his evidence in the affidavit.

3. I held that I was satisfied that a prima facie case had been made out in relation to the allegation of a contravention of the Orders on 17 May 2014. I note that in her affidavit of 15 December 2014 the mother deposed at [32]:

   On the 17 May 2014 I did not deliver the children to changeover as I was worried about their safety. I say that contact did not occur between the children and their father as I was worried about their safety.

4. Noting that statement in the mother’s affidavit, it is hardly surprising that a prima facie case exists. What is surprising is that the mother chose to deny the allegation in its entirety when the evidence upon which she sought to rely contains such an obvious admission.

5. The mother’s solicitor, on instructions from her client, then indicated that the mother would seek to rely on the establishment of a reasonable excuse for the contravention.

Reasonable Excuse for Contravening an Order

1. Thus, the four remaining allegations all turned on whether the mother had established a reasonable excuse for the contraventions.

2. Section 70NAE of the Family Law Act 1975 provides a guide to the meaning of the phrase “reasonable excuse for contravening” an order. Subsections 70NAE(1) and 70NAE(5) are relevant to this matter and are reproduced in full:

   70NAE(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4),(5),(6) and (7).

   70NAE(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 by 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).

3. There, as it can be seen, two legs in subsection (5), both of which must be met.

Conclusions

1. It should be stated at this juncture that the allegations in the Application-Contravention are not drawn with the precision that the Court would normally expect. Each allegation should be in a separate count, rather than being part of a portmanteau allegation that originally contained ten separate dates. Practitioners would be well advised to follow the format contained in Part D of the Application form.

2. The nature of the allegation is misconceived, in that the allegation claims a contravention of both Orders 2 and 4 of the Consent Orders (which are curiously described as “paragraphs”). It is clear that the issue is about a claim of contravention of Order 2, which provides for the father to spend time with the children from 3:00 pm on Saturday to 7:30 pm on Sunday. Clearly, there is an obligation on the mother to comply with the order by making the children available to spend time with the father on those days.

3. However, Order 4 imposes no obligation on the mother at all. Order 4 provides:

   That the father collect the children from McDonalds (omitted) and return the children at the completion of the period to McDonalds (omitted).

4. The order is a machinery order, setting what the father must do to exercise the contact permitted to him by Order 2. It is difficult to see what the mother did to contravene that order other than what she is alleged to have done to contravene Order 2.

5. It was not argued that the allegation was defective or void for duplicity, but to my mind it is the mother’s failure to comply with Order 2 that is the subject of the contravention.

6. Turning to the question of reasonable excuse, the mother has given unchallenged evidence of an apparent injury sustained by the child Z whilst in his father’s care on the weekend of 3 and 4 May 2014. She relies on this fact to establish a reasonable excuse for withholding the children from spending time with the father on the following two weekends.

7. However, for whatever reason, she did make the children available for contact for the weekend commencing on 24 May 2014. I am satisfied that in respect of the allegation about 17 May 2014 the mother has established a belief on reasonable grounds that not allowing the children to spend time with the father was necessary to protect the health or safety of the children.

8. I am also satisfied that the period during which the children and their father did not spend time together was not longer than was necessary to protect the health or safety of the children.

9. It follows that the mother has established a reasonable excuse for the contravention of the Order on 17 May 2014.

10. The mother’s excuse for the contraventions of 31 May, 7 June and 14 June 2014 relates to the altercation between the father and herself on 24 May, which led to her application for an Apprehended Domestic Violence Order against the father on 27 May 2014. The Application was not dealt with until 6 June 2014, when the learned Magistrate made an interim Apprehended Domestic Violence Order.

11. The terms of that Order, which appears to have been continued on 20 June 2014, are the standard orders:

    1.  (a)    The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    (b)    The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    (c)     The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

12. The mother is the protected person and the children are persons with whom the protected person has a domestic relationship.

13. There is an additional order, which is:

    6. The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a current parenting order under the Family Law Act 1975.

14. The fact is that the Interim Apprehended Domestic Violence Order did was not made until 6 June 2014. As it was not in force on 31 May, I am satisfied that the mother had a belief on reasonable grounds that not allowing the children to spend time with the father was necessary to protect the health or safety of the children. I am also satisfied that, for that same reason, the period during which the children and their father did not spend time together was not longer than was necessary to protect the health or safety of the children.

15. It follows that the mother has established a reasonable excuse for the contravention of the Order on 31 May 2104.

16. However, the same cannot be said of the contraventions of 7 June and 14 June 2014. The Interim Apprehended Domestic Violence order was in force, and it was clearly expressed to protect the mother and the children, being persons in a domestic relationship with the mother.

17. The mother may have had a belief on reasonable grounds that not allowing the children and their father to spend time together was necessary to protect the children’s health or safety on 7 June, as the father had not attended Court the day before, when the Order was made and he may not have been aware of the Order, but it cannot be said that the period during which the children and their father did not spend time together was not longer than was necessary to protect the health or safety of the children.

18. The mother could hardly be said to have had a belief on reasonable grounds by 14 June 2014, a week later.

19. The evidence is that the children have not spent time with their father at all since 24 May 2014, notwithstanding the fact that a final order in those same terms was made after a defended hearing on 8 December 2014. 

20. I am not satisfied that the mother has established a reasonable excuse for the contraventions of Order 2 on 7 June and 14 June 2014.

Conclusions

1. The allegation of a contravention on 10 May 2014 will be dismissed on the basis that no prima facie case has been made out.

2. I find that the mother has established a reasonable excuse for the contraventions of 17 May and 31 May 2014.

3. I find that the mother without reasonable excuse contravened Order 2 made on 3 February 2014 on both 7 June and 14 June 2014.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  15 May 2015