ENRIGHT & SCHENK
[2015] FCCA 2023
•31 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENRIGHT & SCHENK | [2015] FCCA 2023 |
| Catchwords: FAMILY LAW – Whether contravention of parenting order – whether contravention without reasonable excuse – “make up” time order – variation of parenting orders. |
| Legislation: Family Law Act 1975, ss.70NAD, 70NAD(b), 65N, 70NAC, 70NAE, 70NAE(2), 70NAE(5), 70NAE(1), 112AC. 70NBA, 70NDB, 70NDB(1)(c), 70NEAB, 70NAF(3), 70NEC, 70NA Evidence Act 1995 (Cth), s.140 |
| In the marriage of Stavros (1984) 9 Fam LR 1025 TVT & TLM (2006) FMCAFam 20 |
| Applicant: | MR ENRIGHT |
| Respondent: | MS SCHENK |
| File Number: | MLC 6734 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 21 July 2015 |
| Date of Last Submission: | 22 July 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 31 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Dr O'Brien |
| Solicitors for the Applicant: | Irwin & Irwin Law |
| Solicitors for the Respondent: | Self represented |
ORDERS
THE COURT DECLARES THAT:
In relation to the contravention application filed 16 April 2015, the respondent did without reasonable excuse:
(a)Contravene order 4(a) of the orders made on 18 November 2013 on 19 February 2015;
(b)Contravene order 4(a) of the orders made on 18 November 2013 on 24 February 2015;
(c)Contravene order 4(a) of the orders made on 18 November 2013 on 26 February 2015;
(d)Contravene order 4(a) of the orders made on 18 November 2013 on 3 March 2015;
(e)Contravene order 4(a) of the orders made on 18 November 2013 on 5 March 2015;
(f)Contravene order 4(a) of the orders made on 18 November 2013 on 10 March 2015;
(g)Contravene order 4(a) of the orders made on 18 November 2013 on 12 March 2015;
(h)Contravene order 4(a) of the orders made on 18 November 2013 on 17 March 2015;
(i)Contravene order 4(a) of the orders made on 18 November 2013 on 19 March 2015;
(j)Contravene order 4(a) of the orders made on 18 November 2013 on 24 March 2015;
(k)Contravene order 4(a) of the orders made on 18 November 2013 on 26 March 2015;
(l)Contravene order 4(b) of the orders made on 18 November 2013 on 27 February 2015 to 1 March 2015;
(m)Contravene order 4(b) of the orders made on 18 November 2013 on 13 March 2015 to 15 March 2015;
(n)Contravene order 4(b) of the orders made on 18 November 2013 on 27 March 2015 to 29 March 2015.
THE COURT ORDERS THAT:
Orders 4 (a) and (b) of the orders made on 18 November 2013 come into effect commencing 1 August 2015.
The orders made on 18 November 2013 are varied as follows:
(a)Orders 4(c) and 4(d) are discharged and the following orders included:
(4)
(c)from 8.00pm Christmas Eve to 3.00pm Christmas Day in December 2015 and each alternate year thereafter; and
(d)from 3.00pm Christmas Day in December 2016 to 8.00pm Boxing Day and each alternate year thereafter.
(b)By inserting new orders 4(f), (g), (h) and (i) as follows:
(4)
(f)from 5.30pm 18 September 2015 to 5.30pm 21 September 2015 and from 5.30pm 25 September 2015 to 5.30pm 30 September 2015, with the father’s time, in accordance with orders 4(a) and (b) to commence again on and from 9 October 2015;
(g)from 5.30pm 18 December 2015 to 5.30pm 22 December 2015, from 5.30pm 27 December 2015 to 5.30pm 31 December 2015, from 5.30pm 6 January 2016 to 5.30pm 11 January 2016, from 5.30pm 18 January 2016 to 5.30pm 23 January 2016, with the father’s time in accordance with orders 4(a) and (b) to commence again on and from 6 February 2016;
(h)the father’s time in accordance with orders 4(a) and (b) is suspended during the periods specified in orders 4(f) and 4(g);
(i)the father’s time in accordance with orders 4(f) and 4(g) may be varied by written agreement.
(c)By inserting a new order 5 as follows:
(5)Changeover shall take place at McDonald’s, [S], Victoria
(d)by inserting a new orders 6 and 7 as follows;
(6)Each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the child or upon permitting any other person to do so.
(7)The parties are to keep each other informed by SMS text message of their current residential address.
IT IS NOTED that publication of this judgment under the pseudonym Enright & Schenk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6734 of 2013
| MR ENRIGHT |
Applicant
And
| MS SCHENK |
Respondent
REASONS FOR JUDGMENT
Background
In these proceedings the applicant father filed a Contravention Application and an Affidavit on 16 April 2015, together with an Application in a Case and Affidavit filed on 10 July 2015.
By way of background, parenting orders were made by consent on 18 November 2013 (“2013 consent orders”) in relation to the child of the parties’ relationship:
[X], born [omitted] 2010 (“the child”)
Relevantly for this contravention application, the 2013 consent orders provided that order 4(a) and (b):
(4)The father spend time and communicate with the child as follows:
(a)each Tuesday and Thursday from 5.30pm until 8.30pm;
(b)each alternate weekend from 5.30pm Friday until 5.30pm Sunday, commencing 29 November 2013.
By his contravention application, the father alleges 22 contraventions of orders 4(a) and (b) of the 2013 consent orders over the period commencing 29 January 2015 to 29 March 2015. There is no dispute that the father has not spent time or communicated with the child from 29 March 2015 to the date of these Contravention proceedings. The father states that he has not seen the child since 26 January 2015. The mother disputes this and says that the father has not spent time with the child since 28 January 2015. In any event, there is no dispute that the father has not spent time with the child for a period of almost 6 months.
The Law
Part VII Division 13A of the Family Law Act 1975 (“the Act”) deals with the consequences of a failure to comply with orders and obligations that affect children.
Section 70NAD of the Act deals with the requirements necessary in certain orders. Under s.70NAD(b) the order relevant to the contravention must be a parenting order and this includes a parenting order relating to the time that a child spends with a parent in accordance with s.65N of the Act.
Meaning of “contravened an order”
Section 70NAC of the Act deals with meaning of “contravened an order” and states:
“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; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.”
In other words, in relation to non-compliance with a Court order, it is clear that the provision requires the Court to be satisfied a respondent to a Contravention Application has either intentionally failed to comply or has made no reasonable attempt to comply with the relevant orders.
The applicant to a Contravention Application bears the onus of proving the contravention of the respondent on the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) refers to the standard of proof and provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied as to the requisite standard and states:
“(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
Meaning of “reasonable attempt to comply with the order”
The issue of whether a respondent to a Contravention Application has made a “reasonable attempt to comply with the order” has been considered in a number of cases. It is clear that a parenting order in relation to a child spending time with the other parent is not a mere declaration, but casts an obligation upon the relevant parent (the mother in this case):
“to take reasonable steps to deliver the child to the [other parent] at the commencement of the access period.”[1]
[1] In the Marriage of Stavros (1984) 9 Fam LR 1025 at 1030.
Whether the steps that were taken by the relevant parent were a reasonable attempt to comply with the relevant parenting order will ultimately depend on the facts and circumstances of each case. As Federal Magistrate Riethmuller (as his Honour then was) stated in TVT & TLM (2006) FMCAfam 20:
“[I]t is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner.”[2]
[2] TVT & TLM, at [33].
Indeed, the Full Court of the Family Court of Australia (“the Full Court”) stated in the case of In the Marriage of Stephenson & Hughes (1993) 16 Fam LR 443 that a primary carer, such as the mother, must appreciate that they are not entitled to treat the other parent “as an enemy who [is] to be thwarted whenever possible by active steps or by passive resistance”.[3]
Meaning of “reasonable excuse for contravening an order”
[3] In the Marriage of Stevenson & Hughes (1993) FLC 92-363; (1993) 16 Fam LR 443, per Fogarty J at 450.
Section 70NAE of the Act deals with the meaning of a “reasonable excuse for contravening an order”.
The section commences:
(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).
Under s.70NAE(2):
“(2) A person (the respondent) is taken to have 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 Court on the person bound by it; and
(b) the Court is satisfied that the respondent ought to be excused in respect of the contravention.”
Section 70NAE(5) deals with contravening an order as to with whom a child is to spend time. It states:
“A person (the respondent) is taken to have 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 necessary to protect the health of the person referred to in paragraph (a).”
It is apparent from s.70NAE(1) that where an order deals with the time a child spends with the parent, s.70NAE(5) prescribes the circumstances where a person is taken to have a reasonable excuse but does not limit the circumstances in which a Court may find that the person has a reasonable excuse.
As to the defence available under s.70NAE(5) of the Act, which is expressed in similar words to that available under s.112AC of the Act at that time, Smithers J in the case of In the Marriage ofO’Brien (1992) 16 Fam LR 723 stated at 727:
“[I]t seems to me that the passing of s.112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether, in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out the access 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.”
Where a Contravention is established
If a contravention is established, then, regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA of the Act to vary the parenting order and the powers under s.70NDB to make an order compensating a parent for time lost. More specifically, s.70NDB(1)(c) states that the Court:
“(c) may make a further parenting order that compensates the person for time that the person did not spend with the child (or the time that the child did not live with person) as a result of the current contravention.”
Indeed, the provision is clear that the Court is required to consider what I will describe as a ‘time lost order’ (more commonly referred to as a ‘makeup order’) provided that such is in the best interests of the child.
Contravention without a reasonable excuse
Subdivisions E and F of Pt.VII, Div.13A, when read together, make it clear that the Court has powers to deal with contraventions committed with a reasonable excuse and those without a reasonable excuse. Apart from a ‘time lost’ order, the Court has a range of powers to deal with contraventions without a reasonable excuse.
The structure of these two subdivisions is such that the Court must decide whether subdivision E or F is the appropriate subdivision in the circumstances. Subdivision E applies where the person who has contravened an order without reasonable excuse has previously not had a sanction imposed on him or her for contravention of a parenting order or acted with serious disregard of that order: see s.70NEAB. In considering whether to make certain orders under subdivision E or subdivision F, such as a bond, community service orders, fine or a sentence of imprisonment, I must be satisfied beyond reasonable doubt that the grounds for making the order exists: s.70NAF(3).
Where the Court is not satisfied that there has been serious disregard by a person of their obligations under a parenting order and a sanction has not previously been imposed, then the orders that can be made in less serious cases include:[4]
(i)an order to attend a post-separation parenting program to better understand the obligations created by parenting orders;
(ii)a bond under s.70NEC of the Act; and
(iii)a costs order.
[4] Subdivision E, particularly s.70NEB of the Act.
Where the Court is satisfied that there has been serious disregard by a person of their obligations under a parenting order and a sanction has previously been imposed, then the orders that can be made include[5]:
(i)a community service order;
(ii)a bond;
(iii)a fine not exceeding 60 penalty units;
(iv)a sentence of imprisonment; or
(v)a costs order;
[5] Subdivision F, particularly s.70NFB(2) of the Act.
I should say that I am satisfied that the 2013 consent orders are parenting orders.
Proceedings
With leave of the Court, the mother attended the proceedings by telephone conference.
The mother was served with the Contravention Application and Affidavit filed on 16 April 2015 on 21 May 2015. The father deposes that the mother was not able to be served with the Application in a Case and the Affidavit filed on 10 July 2015. However, I have read to the mother the salient parts of the Application in a Case, which relevantly seeks the enforcement of the consent orders dated 18 November 2013 and that there be “make up time” for the time the father has not spent with the child as a consequence of the alleged contraventions of the consent orders. The affidavit filed on 10 July 2015 deposes to attempts (unsuccessfully) by the father to contact the mother by telephone in relation to spending time and communicating with the child from the period 3 March 2015 to 2 June 2015.
As the mother was self- represented, I explained to her the procedure the Court adopts in dealing with contravention applications pursuant to Rule 25B.04 of the Federal Circuit Court Rules2001. Likewise, I explained to her the provisions under Part VII, Division 13A of the Act in relation to failures to comply with parenting orders. I explained the meaning of “contravened an order”: s.70NAC, as well as the meaning of “reasonable excuse”: s.70NA. I also explained the orders the Court may make following any determination that she had contravened the orders with or without a reasonable excuse.
I note here that the father submits that he does not seek punitive orders but rather orders for “make up time”: s.70NDB(1)(c). The mother made an oral application that the Court vary the 2013 consent orders so that the father spend time with the child each Tuesday and Thursday from 5.30pm until 8.30pm and on each alternate weekend for one night.
The father relied on his affidavits filed on 16 April 2015 and 10 July 2015. He gave viva voce evidence and was cross examined by the mother. Prior to the cross examination by the mother, I explained to her the nature and purpose of cross examination; namely, to put to the witness, by way of questions, any matters she wishes to rely on. I am satisfied that ultimately she understood the purpose of cross examination and that she competently engaged in that process. The mother gave viva voce evidence and was cross examined by the father’s Counsel.
Did the mother contravene the 2013 consent Orders?
At the hearing of this matter, I struck out the applicant’s first alleged contravention on the basis that it was misconceived. During submissions the father informed the Court that whilst he maintained the position that the mother contravened order 4(a) of the 2013 consent orders on 29 January 2015, because of the agreement by the parties to vary the orders over 26 January 2015 and the following days, he was not pressing this application. As this is a contravention proceeding, I take that submission to be a withdrawal of that alleged contravention.
The mother has admitted each of the remaining 21 alleged contraventions, as follows:
Count 1 -the mother contravened order 4(a) of the 2013 consent orders on 3 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 2 -the mother contravened order 4(a) of the 2013 consent orders on 5 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 3 -the mother contravened order 4(a) of the 2013 consent orders on 10 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 4 -the mother contravened order 4(a) of the 2013 consent orders on 12 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 5 -the mother contravened order 4(a) of the 2013 consent orders on 17 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 6 -the mother contravened order 4(a) of the 2013 consent orders on 19 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 7 -the mother contravened order 4(a) of the 2013 consent orders on 24 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 8 -the mother contravened order 4(a) of the 2013 consent orders on 26 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 9 -the mother contravened order 4(a) of the 2013 consent orders on 3 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 10 -the mother contravened order 4(a) of the 2013 consent orders on 5 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 11 -the mother contravened order 4(a) of the 2013 consent orders on 10 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 12 -the mother contravened order 4(a) of the 2013 consent orders on 12 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 13 -the mother contravened order 4(a) of the 2013 consent orders on 17 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 14 -the mother contravened order 4(a) of the 2013 consent orders on 19 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 15-the mother contravened order 4(a) of the 2013 consent orders on 24 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 16 -the mother contravened order 4(a) of the 2013 consent orders on 26 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 17 -the mother contravened order 4(b) of the 2013 consent orders on 30 January 2015 to 1 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 18 -the mother contravened order 4(b) of the 2013 consent orders on 13 February 2015 to 15 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 19 -the mother contravened order 4(b) of the 2013 consent orders on 27 February 2015 to 1 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 20 -the mother contravened order 4(b) of the 2013 consent orders on 13 March 2015 to 15 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 21 -the mother contravened order 4(b) of the 2013 consent orders on 27 March 2015 to 29 March 2015 by reason that she refused to allow the applicant to spend time with the child.
The having regard to the admissions made by the mother, I am satisfied that the mother contravened the 2013 consent orders as alleged by the father and set out in [32] above within the meaning of s.70NAC.
Did the mother have a reasonable excuse?
The evidence
Prior to the taking of evidence, I asked the mother whether the facts and circumstances upon which she relied to assert that she had a reasonable excuse in relation to the admitted contraventions were the same for each of those contraventions. She said they were. Consequently, in light of the numerous alleged contraventions of the same type over a period of time and bearing in mind that she was self–represented, I indicated to her that she was permitted to elicit this evidence on the basis that it applied to all the admitted contraventions.
Having considered the evidence the mother relied on, in maintaining that she had a reasonable excuse, I am satisfied that the mother, although not expressly said by her, submits that she had a reasonable excuse within the meaning of s.70NAE(5). The matters the mother relied on assert that she had reasonable grounds for believing that not allowing the child and the father to spend time together was necessary to protect the health or safety of the child can be appropriately considered under the following headings.
The motorbike incident
The mother put to the father that, in early December 2014, he rode a motorbike while intoxicated, that the child was on the motorbike and that, whilst the child was on the motorbike, there was a crash.
The father’s evidence was that in mid to late October 2014, he was attending a birthday party of a child who was a friend of his son. The father later clarified through his Counsel that, having looked up the birthdate of his child’s friend, the date was in fact late November 2014. He said he had had a couple of beers but was not drunk. His evidence was that after the party ended, he was giving dinky rides to that child and his son on the bike. He said the motorbike was a dirtbike. In the course of a trip of around one minute with the child on the back of the bike (helmet on), the bike caught on the edge of the curb around a corner, tipped over and both he and his son fell off. There were no injuries to his son. He said that he could see that it was a stupid thing to do and was upset about fact that he might have injured his child. He agreed that, when he telephoned the mother, about that incident he said to her words to the effect that he could have killed him. He said that he was in shock. He denied that he told her that he was terrible father and that she should take the child away. His evidence was that he left soon after that incident and he rang the mother up because he believed she had a right to know. The mother said that it took three hours for him to contact her and he only told her about the incident when they arrived at her place.
The mother said that this incident caused her to feel concerned about the safety of the child in the father’s care.
Mental health issues
These matters were raised as a general issue of concern and as an issue arising from a particular incident on Wednesday, 28 January 2015 (around the time at which the admitted contraventions commenced).
The mother read to the father an SMS text message he sent to her on 28 January 2015, in which he stated words to the effect, “Say goodbye to my best friend in the world for me, say goodbye to [X] my best friend.” The father agreed with the mother that on a previous occasion (some four years ago) he had attempted, self-harm by suicide. The mother said that, this SMS text message, in the context where the father had previously attempted suicide, caused her to have significant concerns about whether the father would attempt suicide again and, consequently, about the safety of the child in the father’s care.
The father said that he sent the SMS text message on 28 January 2015 to make the mother feel bad. He said what he intended by that message is to tell her he was going to remove himself from the child’s life.
In her viva voce evidence the mother stated that she had ongoing concerns regarding the father’s mental health. She agreed that she was not in a position to give an expert opinion on this.
Family violence
The mother raised numerous matters under this general heading. She alleged the father had hit the child (on an unspecified date). The father denied that he had hit the child. The mother alleged that the child had been exposed to physical and verbal abuse by the father towards her in front of the child. The father denied this. He agreed that on changeover there had been arguments between the parties but denied that he had physically or verbally abused the mother.
The mother alleged that the father’s partner (Ms A), in November 2014, put her hand on the child to unbuckle him from the child’s car seat. The father agreed that Ms A had unbuckled the child from the car seat. He denied that subsequent to this, during a telephone conversation between the father and mother, Ms A had stated words to the effect, “[Mr Enright] took something from me, so I tried to take the child from the car.”
The mother alleged that after Ms A’s birthday, when the mother had come to collect the child from time spent with the father, the father leaned into an open window of the car where the child was sitting and said words to the effect, “You have ruined Ms A’s birthday.” The father agreed that he did say this, that it was an inappropriate thing to say and that he regretted having said that to his young son.
The mother alleged that on one occasion, Ms A called the police, after an argument. That the police attended the father’s home with a warrant for an arrest because he had failed to go to Court with respect to an intervention order application made by the mother.
The father’s evidence was that following an incident, in April 2013 (shortly after separation) when he went to the former matrimonial home to get his belongings, the mother called the police. The police advised that he should leave and get the mother to pack the “stuff up.” He said that, in May 2013, he went to the maternal grandmothers home to collect his belongings, there was a disagreement between mother and him, the police were called and they applied for an intervention order on the mother’s behalf. He said that he consented to the order without admissions on the basis that the child’s name was removed from the intervention order. It expired one year later and there were no breaches. He said that he was required to undertake counselling as part of the issuing of the intervention order, which he did. He said that he had failed to attend Court on a date on which he was required to report on his counselling. He said that he didn’t realise he was required to. Consequently the police attended at his home with a warrant for his arrest. He said that the child was not present then.
The father denied the mother’s allegation that during the Christmas period in 2014 he stormed into her house and said he would be taking [X] and not bringing him back. He agreed that he did have the child, by agreement, for the period from 31 December 2014 to 2 January 2015.
The mother agreed that, on 17 February 2015, the father had sent an SMS text message stating, “Can I please see my son tonight at least for half an hour.” She denied that the father had sent the SMS text messages dated 5 March 2015 and 10 March 2015, which were annexed as SE-3 to the father’s affidavit filed 16 April 2015.
On being cross examined about why she had not made any attempt during February and March 2015 (and ongoing to the date of this hearing), despite the fathers SMS text messages requesting some time with the child, to communicate with the father, the mother stated that she tried by telephone but was abused by both the father and Ms A.
The mother alleged that both the father and Ms A had been abusive towards her on the phone since the time she had denied the father access with the child. She said that this was a reason why she continued to deny the father’s access to [X]. She also stated, however, that Ms A had, in effect, mediated between the parties in the past to enable them to reach arrangements for the father to spend time with the child. The mother stated that, on 28 February 2015, she informed the father that if he spoke nicely to her she would allow him time with the child. She read an SMS text message she said was dated 28 February 2015 in which she said words to the effect, “You want compromise, Tuesday and Thursday for tea. Weekends out of the question… Need to sort out life.”
The father’s evidence was that the mother had, on 11 March 2015, applied for an intervention order against Ms A, with the mother named as the affected family member. He said that on the first Mention at Court on 25 March 2015, the mother withdrew her application. The mother did not dispute this.
Medical treatment
The mother also relied on the father’s decision to treat the child’s eczema with medication which was not the medication that the General Practitioner had prescribed for the child. The father said that, when the child was in his care, he formed the view that his eczema had deteriorated, so he took the child to the chemist to get some advice on medication which might help the child. He then applied the medication in accordance with the directions of the pharmacist.
Actions taken by mother
The mother was cross-examined regarding the action she took to discharge her obligations under the 2013 consent orders, during the period she refused to allow the father to spend time with his son in accordance with those orders.
The mother agreed that she did not respond to correspondence dated 4 February 2015 and 31 March 2015 from the father’s solicitor to her regarding her refusal to allow the father to spend time with his son in accordance with the 2013 consent orders.[6] Her explanation for this was variously that she had been advised by one solicitor that the parties should go to Roundtable Dispute Management and she was waiting for this to occur, that she was attempting to get Legal Aid to be legally represented. She also said she was not aware she could represent herself. She repeated that she refused to respond to the father’s text messages,[7] because when she telephoned the father, he and Ms A were abusive towards her.
[6] Father’s affidavit filed 16 April 2015, annexure SE1.
[7] Ibid , annexure SE3.
Submissions
Counsel for the father submits, correctly, that there is no dispute that the mother understood her obligations imposed by the 2013 consent order: s.70NAE(2) and that the mother’s evidence regarding the reasons for her contravention of those orders fall within the scope of s.70NAE(5). The father submits the matters relied on by the mother as the reasons for refusing to allow the father to spend time with the child in accordance with the 2013 consent orders, do not constitute a belief on reasonable grounds that it was necessary to take this action to protect the health and safety of the child: s.70NAE(5)(a).
The father submits that his actions in placing his son on the dirt bike for a short ride was inappropriate and stupid but that he is extremely remorseful and appreciates the serious consequences that may have occurred. He says that he told the mother straight away (she disputes this) and, had the mother been concerned about the safety of the child, she would have taken action straight away. In fact, by agreement, she allowed him to spend time with the child for an extended period over the Christmas and New Year break.
He submits that, objectively, the SMS text message he sent on 28 January 2015 would not have given rise to a concern regarding the child’s safety. In any event, he submits that if the mother had reasonable grounds for believing it was necessary to protect the safety of the child because of this SMS text message, her continued action in contravening the orders (to the end of March and ongoing) constituted a period longer than was necessary to protect the safety of the child: s.70NAE(5)(b). He submits that the mother’s allegation that he has mental health issues is without any objective foundation. They reflect her subjective views and not the opinion of an appropriately qualified medical practitioner.
The father submits that the mother’s allegations of family violence are without foundation. He submits that the intervention order in 2013 was made by consent without admissions, the child was not listed on the order as an affected family member, there had been no breaches of these orders and there were no further applications for interim orders by the mother after this order expired. He submits that the evidence shows that the Police attendance at his house was not because of family violence but because of his failure (due to a misunderstanding) to attend Court to report on progress on his counselling.
The father submits that telling his son that he had spoilt Ms A’s birthday party by his behaviour was completely inappropriate parenting which he regrets. He submits, however, that this did not constitute reasonable grounds to contravene the orders. He submits that the issue of medical treatment is misconceived as, whilst the child was in his care, he was duty-bound to take appropriate steps to deal with any health issues.
The father submits that the mother has shown serious disregard of her obligations under the 2013 consent orders. He submits that the mother’s excuse that she was waiting for lawyers to do something was disingenuous given her evidence that she is presently studying, in her third year, of a psychology degree and the fact that during these proceedings she was competent and articulate in presenting her case.
The mother submitted that there are arguments between the parents in front of the child every time at changeover, that she has grave concerns that the father is aggressive in front of the child and that she took the fathers SMS text message he sent her on 28 January 2015 as a threat that he would attempt to commit suicide again and that she has ongoing concerns about his mental health.
Consideration
There is no doubt that the father’s action in placing his, then four-year-old son, on the back of the dirt bike for even a short ride was reckless and displayed a concerning disregard of the consequences of this action. I am satisfied that the father was remorseful and I accept his evidence that he immediately informed the mother of this incident. I am satisfied that this was a one-off incident. There is no evidence before me that the mother took action immediately to cease time spent by the father with the child. In fact, the mother’s evidence was that she agreed to allow the father to spend extended time with the child shortly thereafter. I am not satisfied that this incident constituted reasonable grounds to believe it was necessary to protect the safety of the child to contravene the 2013 consent orders on 3 February 2015 and ongoing.
The mother alleges that the father (and his partner Ms A) engaged in verbal abuse and denigration towards her on changeover, which the child was exposed to. One assumes that this occurred between the making of the consent orders in November 2013 until February 2015 (when the father’s time with the child ceased). The mother also alleges that, after she contravened the 2013 consent orders, she attempted to telephone the father in response to his text messages to her but was subject to abuse by both the father and Ms A on the telephone. The mother alleges that the father hit the child and the father engaged in family violence towards Ms A. I reject each of these allegations for the following reasons. Firstly, the mother’s evidence was that Ms A had played a helpful role in resolving the differences between the parents. This evidence is not consistent with her evidence that Ms A was abusive. The evidence is that the mother applied for an intervention order against Ms A on 25 March 2015 but withdrew her application. Again, this evidence is inconsistent with the mother’s assertion that Ms A was abusive towards her on the telephone after the time the father spent with the child ceased. Secondly, there was in place an intervention order with the father as a respondent and the mother as the affected family member from the period around May 2013 to May 2014. The mother did not, during that period, make an application that those orders had been breached. Nor did she apply for another intervention order subsequently. I am satisfied that the mother was well aware of her rights to take action if she believed she or the child were being subjected to family violence. Thirdly, the objective evidence is that the father sent SMS text messages to the mother from 17 February 2015 and ongoing (annexure SE-3). These texts messages are neutral in tone. I do not accept that the father would be sending polite respectful text messages and at the same time, engaging in abusive communication on the telephone.
I agree with the father that the SMS text message he sent on 28 January 2015 to the mother could be understood in two ways. First, that the father had decided he would not see the child again or, second, that he was saying goodbye because he intended to self- harm. I accept the father’s explanation that he wanted to hurt the mother because he was frustrated and upset. Of course, this is extremely childish behaviour on his part and one would hope that, into the future, he would desist from engaging in such immature behaviour. However, the focus must be whether the mother had reasonable grounds for believing that it was necessary to protect the safety of her child to contravene the 2013 orders on 3 February 2015 when she received the SMS text message he sent on 28 January 2015. Although the father’s suicide attempt was some four years ago, I am satisfied that it was reasonable for her to form the view that this was a threat to attempt suicide.
The mother says that, in her view, the father has mental health issues and for this reason she remained concerned about the safety of the child in the father’s care. There is no objective evidence before the Court that the father has mental health issues. One might ask why the mother (who was legally represented at the time), consented to parenting orders in November 2013 which provided that the father spend time with the child each alternate weekend overnight from Friday to Sunday, if she had concerns about the father’s mental health.
The evidence is that the mother received correspondence from the father’s solicitors dated 4 February 2015, with respect to the contraventions and that she did not respond to this correspondence. She says she did not respond because she says she was looking for legal representation and or a process of Roundtable Dispute Management. I am unable to accept the mother’s explanation. Given her belief that the SMS text message constituted a threat to suicide it is to be reasonably expected that the mother would have drawn this to the father or his solicitor’s attention. It seems very unlikely that, had the mother raised this concern with a solicitor, the solicitor would have recommended Roundtable Dispute Management. The mother failed to take any steps to appropriately alert relevant authorities regarding her safety concerns.
On 17 February 2015, the mother received a text message from the father asking to see the child for at least half an hour. I am satisfied that the mother received the father’s later text messages sent on 5 March 2015, 10 March 2015, 12 March 2015 and 13 March 2015. No satisfactory explanation was given by the mother, why she would not have received the text messages, which on the face of evidence, were delivered. Each of these text messages pleaded with the mother for some time with the son. The mother also received correspondence from the father’s solicitors dated 31 March 2015 in relation to her contraventions and her failure to respond to the father’s text messages. She did not respond to this correspondence. The explanation she gave for this was as set out at [67]. I simply do not accept the mother’s evidence that she believed she could not represent herself. The father was self- represented in the proceedings leading up to the 2013 consent orders. Furthermore, I have regard to the competent manner in which she conducted herself during these proceedings, which demonstrated that she was perfectly capable of representing herself. In my opinion, she simply chose, for her own reasons, not to engage with the father’s solicitors nor to inform herself about what were the appropriate legal steps to take instead of unilaterally taking it upon herself to continue to contravene the 2013 consent orders.
Having regard to the evidence before me, I find that the mother had a reasonable excuse, within the meaning of s.70NAE(5)(a), for the admitted contraventions as follows:
Count 1 -the mother contravened order 4(a) of the 2013 consent orders on 3 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 2 -the mother contravened order 4(a) of the 2013 consent orders on 5 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 3 -the mother contravened order 4(a) of the 2013 consent orders on 10 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 4 -the mother contravened order 4(a) of the 2013 consent orders on 12 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 5 -the mother contravened order 4(a) of the 2013 consent orders on 17 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 17 -the mother contravened order 4(b) of the 2013 consent orders on 30 January 2015 to 1 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 18 -the mother contravened order 4(b) of the 2013 consent orders on 13 February 2015 to 15 February 2015 by reason that she refused to allow the applicant to spend time with the child;
I am, for the reasons set out at [63], not satisfied that the period during which, because of the contravention the child did not spend time with his father, namely from 18 February 2015 to 29 March 2015, was not longer than was necessary to protect the safety of the child: s.70NAE(5)(b), Consequently, I find that the mother did not have a reasonable excuse for the admitted contraventions set out as follows:
Count 6 -the mother contravened order 4(a) of the 2013 consent orders on 19 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 7 -the mother contravened order 4(a) of the 2013 consent orders on 24 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 8 -the mother contravened order 4(a) of the 2013 consent orders on 26 February 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 9 -the mother contravened order 4(a) of the 2013 consent orders on 3 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 10 -the mother contravened order 4(a) of the 2013 consent orders on 5 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 11 -the mother contravened order 4(a) of the 2013 consent orders on 10 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 12 -the mother contravened order 4(a) of the 2013 consent orders on 12 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 13 -the mother contravened order 4(a) of the 2013 consent orders on 17 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 14 -the mother contravened order 4(a) of the 2013 consent orders on 19 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 15-the mother contravened order 4(a) of the 2013 consent orders on 24 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 16 -the mother contravened order 4(a) of the 2011 consent orders on 26 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 19 -the mother contravened order 4(b) of the 2013 consent orders on 27 February 2015 to 1 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 20 -the mother contravened order 4(b) of the 2013 consent orders on 13 March 2015 to 15 March 2015 by reason that she refused to allow the applicant to spend time with the child;
Count 21 - the mother contravened order 4(b) of the 2013 consent orders on 27 March 2015 to 29 March 2015 by reason that she refused to allow the applicant to spend time with the child.
What orders should the Court make?
The father says he does not seek punitive orders arising out of these proceedings but does seek an order compensating him for the time lost: s.70NDA.
The father also seeks, pursuant to s.70NBA of the Act, what he says are minor variations of the 2013 consent orders. The 2013 consent orders did not provide for time spent during school holidays. The child will commence school in 2016. He seeks an order that the child spend time with him for half of the September 2015 school term holiday and the long school term holiday commencing Christmas 2015. He concedes that spending a block time of half of those school holidays, would not be age-appropriate but believes that time spent overnight with him for a rotating three or four days over the school term holiday time would be in the child’s best interests. He also seeks a variation to the orders (4)(c) and (d) which deal with time spent over Christmas. The orders he seeks is that he spend time with the child from 8.00pm on Christmas Eve to 3.00pm on Christmas Day in alternate years and from 3.00pm on Christmas Day to 8.00pm on Boxing Day in alternate years. The mother has consented to the proposed variation for the Christmas period. Consequently I will make these orders as I am satisfied that they will be in the child’s best interests.
Both parties agreed that there should be a provision for changeover at a neutral venue and agreed that this should occur at McDonald’s, [S] Victoria. I will include an order to this effect. In response to a question from me, both parties also agreed that there should be an order restraining them from engaging in denigration of the other in the presence of the child. I will include the usual order. The mother informed the Court that she was about to change her residential address. The father was unaware of this. I am satisfied that it is in the best interest of the child that his parent’s be required to keep each other informed of the current residential address. I will include such an order.
The mother seeks to vary order 4(b) of the 2013 consent orders so that the child spends one overnight with the father each alternate weekend. Her reasons for seeking this variation is that she remains concerned about the father’s mental health and consequently she believes that overnight time is not in the child’s best interests.
The mother says she is not opposed to the father spending additional time with the child during both school term holidays but says these should be confined to additional time during the daytime only.
Turning to the mother’s proposed variation of clause order 4(b) of the 2013 consent orders. As I have indicated earlier in my reasons, I am not satisfied that the father has ongoing mental health issues. On the evidence before me, the father has spent overnight weekend time with the child for at least a period of one year without incident. Until the admitted contraventions, neither party took any steps to alter the orders. Consequently, I am not satisfied that it is in the child’s best interests to vary the orders as sought by the mother.
Given the long period in which the father has not spent time with the child because of the admitted contraventions, I am satisfied that it is in the best interests of the child that I make an order for “make up time” pursuant to s.70NDA.
I am satisfied that, this is best done during the period in which Victorian school holidays are gazetted for the third term holiday and the long school term holiday in 2015. I am further satisfied that given the child’s age, the additional time should be spent in blocks of three or four nights in the third term Victorian school gazetted holiday and in blocks of 4 to 5 nights in the long school Victorian school gazetted term holiday. During these times orders 4(a) and (b) would be suspended.
Conclusion
For the reasons set out in this decision makes the declarations and the orders set out above.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 31 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Breach
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Remedies
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Procedural Fairness
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Abuse of Process
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