Ericsson and Beesley (No.3)
[2016] FCCA 2111
•24 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & BEESLEY (No.3) | [2016] FCCA 2111 |
| Catchwords: FAMILY LAW – Contravention application – alleged contraventions of final parenting orders – whether contraventions proven – whether reasonable excuse for contraventions established – makeup time and order under s.70NBA. |
| Legislation: Family Law Act 1975 (Cth) ss.70NAC, 70NAE, 70NAF, 70NBA |
| Cases cited: Childers & Leslie [2008] FamCAFC 5 |
| Applicant: | MR ERICSSON |
| Respondent: | MS BEESLEY |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 21 July 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Dandenong |
| Delivered on: | 24 August 2016 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Jenkins |
| Solicitors for the Respondent: | Rockman & Rockman |
ORDERS
UPON THE COURT FINDING THAT:
The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 21 December 2015 without reasonable excuse.
The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 27 November 2015 without reasonable excuse.
The respondent mother contravened order 8(b) of the orders of 18 December 2014 on 28 December 2014 but had a reasonable excuse.
The respondent mother contravened order 4(a) of the orders of 18 December 2014 on 5 February 2016 but had a reasonable excuse.
THE COURT ORDERS THAT:
Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:
(a)The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
(b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
Pursuant to s.70NEB make up time be provided (in addition to the time with the father under the orders of 18 December 2014) for one weekend per month from after school Friday to 5:00pm Sunday for the next 2 calendar months and on the third such weekend of each month, unless agreed otherwise.
The contravention applications filed 21 December 2015 and 26 February 2016 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Beesley (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MR ERICSSON |
Applicant
And
| MS BEESLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are two contravention applications filed by Mr Ericsson (“the father”). The respondent to both applications is Ms Beesley (“the mother”).
In both the contravention applications the father alleges the mother contravened final parenting orders made on 18 December 2014.
Sadly, like most of these sorts of applications “whatever the outcome … it will seem unlikely to contribute to any real diminution in the particular families conflict” (see Childers & Leslie [2008] FamCA FC 5 at [1]).[1]
[1] see also Oxley & Inglis [2007] FamCA 1606 at [2]-[3] for observations on the utility of contravention proceedings.
Background
The father is 51 years of age and lives in Suburb C. The mother is 42 years of age and lives in Suburb D. The father gives his occupation as a professional but is unemployed. The mother gives her occupation as professional consultant. The parties married in 1993 and separated in 2012.
The children of their relationship are [X] born … 2003, [Y] born … 2006 and [Z] born … 2008 (“the children”).
There were final parenting orders made on 18 December 2014 (“the Orders”) by Judge Phipps for the reasons set out in Ericsson & Ericsson [2014] FCCA 2953. The father filed a further application for parenting orders on 14 August 2015. On 27 November 2015 and for the reasons set out in Ericsson & Ericsson (No.2) [2015] FCCA 3146 Judge Phipps dismissed that application.
The father then filed a contravention application on 21 December 2015. When that application first came before the Court on 29 February 2016 Judge Phipps recused himself and adjourned the father’s contravention application to a date to be fixed. Before that however the father had filed another contravention application on 26 February 2016. The second contravention application had been listed to a later date. Given the above order both of the father’s contravention applications were then re-listed to 27 May 2016 before the Court as currently constituted.
On 27 May 2016 the Court made orders adjourning the father’s contravention applications to 21 July 2016 for hearing.
The hearing
On 21 July 2016 the father appeared in person and the mother was represented by Ms Jenkins of Counsel.
At the beginning of the hearing the process for contravention applications, as contained in Rule 25B.04 of the Federal Circuit Court Rules 2001 (“the Rules”) was explained to the father as he was unrepresented. The father was told that the mother’s affidavit filed 25 February 2016 would not usually be available until a prima facie case was established. To that extent early notice of her defence was to his advantage.[2]
[2] Despite the infelicitous pleading in the first contravention application the mother’s affidavit, prepared by solicitors, made clear she understood the allegations.
At the hearing on 21 July 2016 the father told the Court he relied on:
a)the contravention applications filed on 21 December 2015 and 26 February 2016;
b)his affidavits filed 21 December 2015 and 26 February 2016; and
c)the affidavit of Ms J (his new wife) filed 29 February 2016.
The mother told the Court she relied on:
a)her affidavit filed 25 February 2016.
By agreement both the father’s contravention applications were heard concurrently. At the commencement of the hearing the mother was asked to respond to each of the allegations. In relation to the contravention application filed 21 December 2015, the mother admitted allegation 1 (count 1) but said she had a reasonable excuse, denied allegation 2 (count 2), admitted allegation 3 (count 3) but said she had a reasonable excuse, denied the 4th (count 4), 5th (count 5) and 6th allegation (court 6) and admitted to the 7th allegation (count 7) but said she had a reasonable excuse. The mother denied each of the allegations (counts 8 and 9) contained in the contravention application dated 26 February 2016.
The father gave evidence. He adopted the affidavits already referred to. There was some brief oral evidence-in-chief and he was cross examined. Ms J was also called to give evidence and was cross examined. At that stage and given the mothers answer to the allegations in relation to counts 1, 3 and 7 the mother was called to give evidence and was cross examined.
Both parties had an opportunity to make submissions including in relation to any orders that should be made if the Court found the mother had not established a reasonable excuse and the Court reserved it’s decision.
The Orders
There were final parenting orders for the children made on 18 December 2014 (the Orders) for the reasons set out in Ericsson & Ericsson [2014] FCCA 2953. The Orders provided:
“(1)That the wife have sole parental responsibility for the children of the marriage [X] born … 2003, [Y] born … 2006 and [Z] born … 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
(2)Other than in paragraph (1) the parties have equal shared responsibility for the children.
(3)That the children live with the wife.
(4)That the children spend time and communicate with the husband during the school term as follows:
(a)Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;
(b)Each alternate Thursday from after school or like time to 7.00pm;
(c)As otherwise agreed in writing between the parties.
(5)That the children spend time and communicate with the husband during Religious festivals as follows:
(a)In each even numbered year for the first 2 days of (omitted), the 2 days of (omitted), the 1 day of (omitted) and the last 2 days of (omitted) which are otherwise known as (omitted) and (omitted); and
(b)In each odd numbered year for the last 2 days of (omitted), the 2 days of (omitted) and the first 2 days of (omitted);
(c)On any other Religious festival that fall within the time that the husband would otherwise be spending time with the children.
(6)That the children spend time and communicate with the wife during Religious festivals as follows:
(a)In each odd numbered year for the first 2 days of (omitted), the 2 days of (omitted), the 1 day of (omitted) and the last 2 days of (omitted) which are otherwise known as (omitted) and (omitted); and
(b)In each even numbered year for the last 2 days of (omitted), the 2 days of (omitted) and the first 2 days of (omitted);
(c)On any other Religious festival that falls within the time that the wife would otherwise be spending time with the children.
(7)That for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:
(a)The party with whom the children shall spend the Religious festival shall collect the children from the conclusion of school or 3.30pm if a non school day;
(b)In the event that the Religious festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the Religious festival shall return the children to the other one hour after the conclusion of the Religious festival; and
(c)In the event that the Religious festival ends at a time that (omitted) commences then the time to be spent with the party shall be extended to one hour after the conclusion of (omitted).
(8)Subject to the specific orders in relation to Religious Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a)In week one with the wife;
(b)In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.
(9)That the children spend time with the husband on Father’s Day from 10.00am until 6.00pm.
(10)That the children spend time with the wife on Mother’s Day from 10.00am until 6.00pm.
(11)That the children spend time with the husband on their Religious birthdays each year, provided same do not fall on a day when driving is prohibited, as follows:
(a)For two hours, after school, if same falls on a school day;
(b)For four hours as agreed or otherwise from noon to 4.00pm at times to be agreed, should same fall on a non-school day.
(12)That the children shall continue to attend School B and the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children be shared equally by the husband and the wife.
(13)That each party keep the other informed of their current residential address, email address and telephone numbers.
(14)That each party shall inform the other of their intention to remove the children from Victoria no less than 7 days prior to doing so and in the event that the party is to travel interstate with the children they shall inform the other of their destination and a telephone number for such period.
(15)That should the husband be required to return to Country P for any period of time that he communicate with the children whilst he is overseas by Skype of telephone at 7.00pm Australian Eastern Standard Time each Tuesday and Thursday or as otherwise agreed in writing between the parties.
(16)That unless otherwise ordered by the court the parties their servants and agents be restrained by injunction from:
(a)Discussing these proceedings or the intervention order proceedings to or within the hearing of the children or any of them;
(b)Discussing any part of the evidence in these proceedings or the intervention order proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits to or within the hearing of the children or any of them; and
(c)Showing the children, or allowing the children to have access to any written or other material relating to court proceedings between the parties.
…”
Contravention application/s
The father’s contravention application filed 21 December 2015 made the following allegations:
a)Count 1:
“State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
8(b)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
21/12/2015 to 21/12/2015
8.00am to 8:00am (sic)
Location C
Statement of the alleged contravention
The respondent without reasonable excuse refused to allow the applicant to spend time with the children to the Marriage named: [X], [Y] and [Z].
b)Count 2:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
4(a)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
11/12/2015 to 1311/2015 (sic)
3:00am (sic) to 5:00pm
Location C
Statement of the alleged contravention
The respondent without reasonable excuse refused to allow the applicant to spend time with the children to the Marriage named: [X], [Y] and [Z].
c)Count 3:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
4(a)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
27/11/2015 to 29/11/2015
3:00am (sic) to 5:00pm
Location C
Statement of the alleged contravention
The respondent without reasonable excuse refused to allow the applicant to spend time with the children and collected the children from school at 2.0pm, (sic) Named Children: [X], [Y] and [Z].
d)Count 4:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
4(a)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
18/09/2015 to 20/09/2015
3:00am (sic) to 5:00pm
School B
Statement of the alleged contravention
The respondent Mother without reasonable excuse refused to allow the applicant to spend time with the children and failed to send all of our children to school, children named: [X], [Y] and [Z].
e)Count 5:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
8(b)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
06/07/2015 to 08/07/2015
8.00am to 8.00am (sic)
Location C
Statement of the alleged contravention
The respondent mother a resident parent, without reasonable excuse failed to facilitate exchange of the children named: [X], [Y] and [Z].
f)Count 6:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
4(a)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
26/06/2015 to 28/06/2015
3:00pm to 5:00pm
Location C
Statement of the alleged contravention
The respondent Mother without reasonable excuse refused to allow the applicant to spend time with the children and failed to send all our children to school, children named: [X], [Y] and [Z].
g)Count 7:
State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
8(b)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
12/12/2014 (sic) to 28/12/2014
As allocated per the order
Location C
Statement of the alleged contravention
The respondent Mother without a reasonable excuse refused to allow the applicant to spend time with the children in each of the corresponding time per paragraph 12(b) of my affidavit. Children Named: [X], [Y] and [Z].
The father also filed a contravention application on 26 February 2016. The father’s second contravention application contained the following further allegations:
a)Count 8:[3]
[3] This was count 1 in the contravention application filed 26 February 2016
“State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
8(b)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
25/12/2015 to 27/12/2015
8.00am to 5:00pm
Location C
Statement of the alleged contravention
The respondent without reasonable excuse refused to allow the applicant to spend time with the children to the former marriage named: [X], [Y] and [Z].
b)Count 9:[4]
[4] This was count 2 in the contravention application filed 26 February 2016
“State the paragraph number of the attached order, bond agreement, registered parenting plan or undertaking that you allege has been contravened
4(b)
State precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place, if applicable.
Date
Time
Place
05/02/2016 to 07/02/2016
3:00pm
5:00pm (sic)
Statement of the alleged contravention
The respondent without reasonable excuse refused to allow the applicant to spend time with the children to the former marriage named: [X], [Y] and [Z].”
The law
Contravention proceedings are commenced pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The relevant provisions of Division 13A of the Act include, section 70NAC, which defines what “contravened an order” means as:
“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.”
Section 70NAC of the Act emphasises that a contravention occurs when a person bound by an order has intentionally failed to comply with it or made no reasonable attempt to comply with it.
The applicant father bears the onus of proving on the balance of probabilities the contraventions by the mother of the Orders (see Jets & Maker [2010] FamCAFC 55).
Meaning of ‘reasonable attempt’
The issue of whether a respondent (in this case the mother) has made a ‘reasonable attempt to comply with the order’ has been considered in a number of cases.
In TVT & TLM [2006] FMCAfam 20 (“TVT”) Riethmuller FM, as His Honour then was, stated, “it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner”.[5]
[5] TVT & TLM [2006] FMCAfam 20 at [33].
In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443 the Full Court said that a primary carer, such as the mother in this case, must appreciate that they are not entitled to treat the other parent “as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.”[6]
[6] In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443 at [450] (Fogarty J).
It ultimately turns on the facts and circumstances of each case as to whether the steps taken are a “reasonable attempt to comply” with a “spend time with” order. In TVT (supra) and again in Stamp & Stamp [2014] FCCA 1269 Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provided considerable guidance as to the extent of the obligation:
“a) The ‘live with’ parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539).
b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O’Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC 92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at paragraph [102], Cronin J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
Your legal obligations
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [25].
d) ‘Similarly, a mere request that the child telephone, or come to the telephone is insufficient’, see: TVT & TLM [2006] FMCAfam 20 at [33].
e) Once an order for the child to spend time has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O’Brien & O’Brien (1993) FLC 92-396 at [11].
f) A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O’Brien & O’Brien (1993) FLC 92-396 at [8].
g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
h) It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: See Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [26].
i) ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the [live with parent] of compliance with the obligation’; see Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].
j) ‘It is not sufficient discharge of [live with parent’s] obligations, express or implied, to point to words and actions and to say, in effect: ‘You see I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].
k) The ‘live with’ parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC 92-363 ([1993]) FamCA unrep 527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [8].”
If the Court is satisfied that the mother did contravene the Orders, either intentionally or by not making a reasonable attempt to comply, then the Court is also bound to consider whether the mother had a reasonable excuse for doing so.
Given the mother’s answer to counts 1, 3 and 7 the Court will also consider the issue of a ‘reasonable excuse’ in light of the facts of this case and in the event that the Court finds that a contravention of the Orders has occurred.
Section 70NAE sets out that “reasonable excuse” means:
“(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).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”
As to the defence available under section 70NAE(5) (which is in similar terms to what was available under section 112AC then) Smithers J in In the Marriage of O’Brien (1992) 16 Fam LR 723 said:[7]
“…it seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of a child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to the order was necessary to protect the health and safety of a person. It is not a question as to whether the view of the custodial parent or the view of the custodial parent on reasonable grounds that the carrying out of the access order might not be in the best interest of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”
[7] (1992) 16 Fam LR 723 at 727.
The mother’s conduct must be reasonable when judged by reference to an objective standard. It is not sufficient for the mother merely to think that the Orders are wrong or that time with the father is not in the children’s best interests.[8] In Kelly & Kobelnek[9] Hannon J expressed the test as follows:
“In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.”
[8] see Gaunt & Gaunt (1978) FLC 90-468 at page 77,398
[9] Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia at Hobart delivered 10 March 1998
Section 70NAE(5) is not unlimited in its application. In order for the mother to be excused from her conduct, she must establish that her deprivation of time between the children and their father in accordance with the Orders was not longer than was necessary to protect the children’s health and safety.
Standard of proof
Finally the provisions of section 70NAF set out the relevant provisions dealing with the standard of proof required for determining contravention applications. That section provides:
“70NAF(1)[Balance of probabilities] Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
70NAF(2)[Reasonable excuse of contravening] Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
…”
The evidence
The father
The material upon which the father relied was referred to earlier.
In his affidavit filed 21 December 2015 the father deposed:
“5. Details outlined in each alleged contraventions are as follows:
6. On my allocated time pursuant TO CASE No DGC 1317 OF 2013, I refer herein to the order Ericsson & Ericsson [2014] FCCA 2953] to paragraph 4(a) Children spend time and communicate with the husband during the school term.
7. On my respective second weekend of school holyday (sic) per Para 8(b) of the order, From 8.00 a.m. Monday 21 December 2015 to 8.00am Wednesday 23 December 2015. The respondent Mother without a reasonable excuse failed to inform the father and enrolled [X] and [Y] in a Summer Camp. On 16 December 2015, I have endeavoured to communicate with the Mother on this matter…
8. On 3.00 p.m. Friday 11 December 2015 to 5.0pm (sic) 13 December 2015, on my respective alternate weekend with the children per Para 4(a) of the order. The Mother with no excuse failed to facilitate the children’s’ (sic) time with the Father. I have sought the Mother (sic) response to my request to spend time with the children …
9. On 27 November 2015 at 3.0pm (sic) I went to collect the children from School B, The (sic) respondent Mother without reasonable excuse collected the children from school at 2.0pm.(sic) Per para 4(a) of the order the Mother contravened the order (sic) This weekend from 27 November 2015 from after school to 5.00pm Sunday is my alternate weekend with the children. I was disappointed, after preparing (omitted) for the children I had to return to my empty home…
10. On 18 September 2015 3.00 pm at School B. The respondent Mother without a reasonable excuse failed to send all of our children to school; this is my allocated alternate weekend with the children per Para 4(a) from after school Friday to 5.00pm Sunday...
11. On 06 July 2015 to 08 July 2015 per Part D of my Application. The respondent Mother a resident parent, without reasonable excuse, failed to facilitate exchange of the children. I have communicated with her Law firm to arrange spend time with the children per para 8(b) of the current order…
The Mother insists that during my respective time with the Children, I should commute both ways to facilitate exchange of the children; I find this to be unreasonable and to resolve this dispute I have drafted a proposal sent to the Mothers’ Lawyer. I consider this proposal to be reasonable and children centered (sic)…
12. The issues in dispute derived from the lack of clarity in the in the (sic) order per para 8 (a). There are three term breaks and one summer break in School B calendar… The order per para 8 copied herein 8(a),(b) as follows;
(8) Subject to the specific orders in relation to Religious Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a) In week one with the wife;
(b) In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday
The result of the para (8) and its part thereof (a), (b) are not clearly defined as to when the first week with the Mother commences. The alternate weekend with the Husband Father in the school calendar cycle per Para 4 (a) of the order, coincides with the end of terms in school.
As exercised by the Mother, it has resulted in 4 incidences where the children did not spend alternate weekend with the Husband Father, for a whole month.
The resulting final orders made in chamber (sic) with the presiding Honourable Judge Phipps were reliant on the presumption that parties to the proceedings were residing in a distance of 2 km between the respective homes. This is no longer the case, the respondent Mother chose to purchase a property and relocated to the outer Melbourne suburb of Suburb D.. The distance between the parties in now 47 km and can take up to over an hour in pick (sic) traffic.
Per para 4(b) of the order, the Mother insists that on each alternate Thursday from after school or like to 7.00pm I should drive the children back to her home. I note that Mother suspends this time during term breaks and summer holidays.
13. On 26 June 2015 to 28 June 2015 Per Part D (13) of my Application, the Respondent Mother, without reasonable excuse, failed to send all of the children to school. I refer herein to the earlier attached alleged contravention of para 4(a) of the order…
I could not collect the children from school. Further, no notice was given by the Mother or her Lawyer on her intent to refuse the Husband father to spend time with the children. On the 23 June 2015, ahead of school term break 2, I have communicated with the respondents lawyer to arrange spend time with the children per para 4(a) of the current order…
14. From12 (sic) December 2014 to 28 December 2014. Per Part D (15) of my Application, the respondent Mother, without reasonable excuse, refused to allow the children to spend time with the Husband Father. The mother (sic) refusal and the circumstances revolving in this alleged contravention…
Per Para 9 to 21 of my affidavit filed 22 September 2015, I refer herein to the alleged assault in Location N on 08 December 2014.This (sic) matter is before the Court A, contested hearing date is set to 10 February 2015. Witnesses are summoned to support my version deposed in this affidavit. Based on the fact that evidence were not yet heard in the Court A on the above, I plea with this Court not to draw conclusions or justify the Mother’s contravention outlined herein. …”
In his affidavit filed 26 February 2016 the father deposed:
“7. I wish to inform the Honourable Court of series of alleged contraventions in the following paragraphs.
8. On my respective second weekend of school holyday, (sic) per Para 8(b) of the order, from 8.00a.m. Friday 25 December 2015 to 5.00p.m. Sunday 27 December 2015. The respondent Mother without a reasonable excuse failed to facilitate spend time with all of the children to the previous marriage per para 8(b) of the order.
9. The Mother failed to respond to my request to spend time with the children; I have endeavoured to communicate with the Mother on this matter…
10. I note that due to the Mother (sic) refusal to facilitate time with the children, I have not spent time with the children from 19 November 2015 to 12 February 2016…
11. I have emphasised that the weekend of 25 December 2015 to 27 December 2015was (sic) my scheduled weekend and I was greatly disappointed of not being able to spend time with the children or to say goodbye before my departure date of 30 December 2015.
12. 3.00 p.m. Friday 05 February 2016 to 5.0pm (sic) Sunday 07 February 2016. The Mother with no excuse failed to facilitate the children’s’ (sic) time with the Father. The above date is my respective alternate weekend with the children per Para 4(a) of the order. On 31 January 2016 I have received an email from the respondent…
I have responded to the Mother’s email and sought the Mother (sic) response to my request to spend time with the children.
…Per this letter I have reminded the respondent that the above weekend is scheduled as my weekend per the order, I further note that the Mother unilaterally advised me on a change in the order without seeking my response or attempt to file an application with the Court to vary the order…”
The father also relied on the evidence of Ms J who, in her affidavit filed 29 February 2016, deposed:
“1. In my affidavit I intend to provide the court with realistic and true perspective about Mr Ericsson character. After reading Ms Beesley’s affidavit I felt that justice in the case of Mr Ericsson proceeding (sic) has not been served. Knowing Mr Ericsson and the children for more than 20 months, I can confidently say that Mr Ericsson is a victim of character assassination by Ms Beesley. It is my belief that this character assassination had negatively impacted court decisions regarding children’s arrangements.
2. Once a person’s good name has been damaged, it is very difficult to rectify it. I ask the court to carefully read my Affidavit and overlook the grammatical errors that may compromise my writing.
[X] and [Y] attending camp (reference to para.9-10).
3. Contrary to Ms Beesley’s affidavit, Mr Ericsson had nothing against the idea of his children participating in the school camp. On the contrary, he was happy that they attended the camp, as since they moved away from their Religious environment, their involvement in Religious communal activities has declined. The problem presented was not the camp, but Ms Beesley’s lack of communication to inform Mr Ericsson that the children will not be with him on his allocated time. Also, her unwillingness to negotiate makeup time for Mr Ericsson to be with the children has further complicated the dispute. Important to note, that Ms Beesley made no communication to Mr Ericsson regarding [Z], who was not enrolled in the camp like his older brothers.
4. No question the camp was valuable for the children. However, equally important, if not more, is the time spent with the father. It is reasonable to understand Mr Ericsson request to have this time replaced by alternative days to prepare [X] to his Bar-mitzvah and simply be together. I see how the boys need their father; I can see how they have much to learn from their father. He is an integral part of his sons’ healthy emotional physical and cognitive growth. I see how the boys take after their dad, for example, [X]’s love for (omitted) music. Recently Mr Ericsson bought [X] an (omitted) musical instrument to encourage [X]’s interest in music. It is important to note that the children themselves express their desire to share more time with their father.
Short Thursdays and travel responsibilities (reference para.15)
5. It is uneasy to watch Mr Ericsson with his children on Thursdays, when they only have 3 hours to share together. By the time Mr Ericsson and the children come home after spending over ½ an hour in traffic. By the time Mr Ericsson feeds the children and attends to their immediate needs, they are left with no quality time to do something special together. On His alternate weekends when more time is allowed Mr Ericsson does his best to provide the boys with extra enrichment activities such as private math tutoring for both [X] and [Y].
6. Mr Ericsson’s proposal to extend Thursdays from 3 hours to an overnight stay had the intention to make the time more beneficial and prevent unnecessary conflicts regarding children’s travel. I find it ironic that Ms Beesley doubts Mr Ericsson capability to care for the children, considering she willingly asked him last (omitted) to care for the children for 6 continues (sic) nights. Thanks, our family had a rare opportunity to spend this joyful time together.
7. Ms Beesley proposed to Mr Ericsson extended 30 min. with the children, provided he will bring them to her home. The proposed 30 min. do not cover the travel time to her house. Moreover, this proposal reduced Mr Ericsson Thursdays to merciless car-experience. Each alternate Thursday I see how Mr Ericsson is looking forward for the children’s arrival, and each time after they leave, he expresses his disappointment in doing so little with them. Before Ms Beesley moved to her new home Mr Ericsson took charge of the travel as a good will gesture. As circumstances have changed due to Ms Beesley’s decision to relocate to the suburb of Suburb D, it is reasonable to share responsibilities. I saw [X]’s distress when he was forced to deliver threatening messages to Mr Ericsson from Ms Beesley’s partner to pick up the kids and bring them back or Mr Ericssonl will not see his kids. Thanks these threats have stopped as I saw how these intimidations put much stress on [X], his brothers and Mr Ericsson. In addition to the children’s arrangement, unfair share of traveling (sic) will compromise Mr Ericsson obligations in shule services(Religious (sic) place of worship).
Extended trips to Country P (reference to pra(sic).11).
8. Ms Beesley stated that Mr Ericsson, the father “elected to travel from Australia to Country P instead of spending time with the children.” Mr Ericsson had lost his father to illness just over a year ago. Mr Ericsson had to travel 3 trips to Country P as a result.
9. Mr Ericsson first urgent trip was when he was told that his father was dying. Thanks, on this trip his father returned home. His second trip took place on his father’s passing. Mr Ericssonl attended the funeral and stayed for 30 days of mourning with accordance to the Religious laws and tradition. His third trip took place just before the completion of the yearly mourningThis also included important family customs.
10. Only 4 days after the mourning was completed, Mr Ericsson and I got married. Our wedding was of mixed emotions considering it was so soon after the yearly ceremony. Seeing Mr Ericsson re-establishing a home with a new wife gave Mr Ericsson family much joy. In every trip Mr Ericsson expressed his yearning to be with his children in his loving immediate family context. Mr Ericsson was acting with accordance to Religious mourning costumes (sic) and the important Law of ‘Respect Your Parents’, which he follows naturally. I saw the way Mr Ericsson cared (sic) his ill mother as well as my mum, when she was unwell. Mr Ericsson has also told me how he used to care for Ms Beesley’s late father and I truly believe what he said. I trust the court can see his good character and his willingness to be with his children overseas if he only could. Ms Beesley was well informed by Mr Ericsson about his trip. Any attempt to portray Mr Ericsson as a careless father who avoids his children is groundless and harmful for Mr Ericsson character and the children.
Character assassination using words, no facts (reference to para.17, 18,19,20) (sic).
11. The numerous statements used by Ms Beesley to portray Mr Ericsson as an uncontrolled aggressor where (sic) not supported by evidences. (sic) Mr Ericsson was described as “Visibly angry and aggressive” screaming at people and following her in his car to intimidate her. These are strategic damaging words that have no concrete base (sic). They are used to provoke negative emotions about Mr Ericsson. I can easily describe Mr Ericsson as “visibly happy and warm”. I can easily describe his dancing, singing and nurturing. While Ms Beesley provided words with no true evidence, I can attest my observation of Mr Ericsson good character. I see no fearful children. On the contrary, I see confident children that feel safe to express any need or concern. I see children who give and receive much love. We believe in moral and peace loving laws, and do our best to create a home of harmony. No parent is perfect, but under no circumstances abuse can be tolerated. Abuse is a crime. Any reference to Mr Ericsson (sic) abusing his children or violent temper is untrue.
12. Contrary to Ms Beesley’s statements I confidently second Dr H in her affidavit that Mr Ericsson “propensity to commit acts of aggression appears to be at the low end of the risk category”. I also second the Clinical and Forensic Psychologist Dr M in his affidavit stating that Mr Ericsson mental health does not justify separation from his children and that Mr Ericsson does not poses (sic) a risk to his children.
Location N (reference Pra(sic).29
13. With regards to the incident in Location N I have seen Mr Ericsson straight after the incident and heard his version of the incident. I urge the court to consider the 3 Affidavits given by two valued educators from School B colleague (sic) and an independent member who like Mr Ericsson, hold very different view (sic) to Ms Beesley and her partner’s version. I plea the court to do (sic) deliver justice and consider all witnesses before further distort Mr Ericsson character and good intentions.
Good character reference
14. I have read the affidavits given by the respected communal Mr R. Mr R has known Mr Ericsson for 14 years. I would like to second Mr R’s observations about the following:
The children relate with ease and love with their father.
The father disciplines the children with words and in a gentle manner.
The father negotiates his time and attention between the three children.
The father resolves conflict between the children with patience, tolerance and great care.
The children respond with delight and enthusiasm when spending time with their father.
15. As an educator I see many parents and their interactions with their children. It is my humble opinion as an educator as well as a mother, that Mr Ericsson is a competent father that has his children’s best interest (sic) in mind. He is a father that would like to be further involved in his children’s schooling events and activities. Based on my experiences with Mr Ericsson, the children at home and in the community, I believe that Ms Beesley conducts herself as a victim by strategically manipulating facts to present an untrue picture about Mr Ericsson. Ms Beesley attempts to discredit Mr Ericsson as a father by engaging in character assassination to dehumanise him in the eyes of the Court…”
In her evidence before the Court Ms J admitted to the extent she sought to give evidence relevant to the pleaded allegations she had no direct involvement in the events in question and was not present on any of the relevant occasions the Orders were alleged to have been contravened. Accordingly, and with no disrespect to her, her evidence was of no assistance or relevance to resolving whether either the father had established the mother had contravened the Orders or to the extent she either admitted she had or was found to do so there was a reasonable excuse.
The Mother
In support of her response to the charges, the mother relied on her affidavit filed 25 February 2016. In that affidavit the mother deposed:
“Response to Mr Ericssonl’s material
6. I refer to the Affidavit of Mr Ericsson affirmed on 18 December 2015 and filed herein (“Mr Ericsson Affidavit”)…
…
9. In response to paragraph 7 of Mr Ericsson Affidavit, I agree that Mr Ericsson was to spend time with the children pursuant to the Orders from 8.00 a.m. Monday 21 December 2015 to 8.00 a.m. Wednesday 23 December 2015. Our eldest two children [X] and [Y] had previously attended winter and summer holiday camps run by (omitted) which is a Religious Youth Movement affiliated with School B, the Religious Day School that they attend. Many of their friends also attend the (omitted) holiday camps during school holiday periods.
10. The summer camp was to take place in Town O from the morning of 17 December to lunchtime on 22 December 2015 and I enrolled [Y] and [X] for the camp at my own expense. Both of the boys were very excited about attending camp with their friends however once Mr Ericsson realised that part of the camp coincided with time that he was to spend time with the boys pursuant to the Orders he contacted the camp Co-ordinators to demand the location of the campsite to complain. I was informed by them and verily believe that Mr Ericsson conducted himself in a very aggressive manner demanding information and the ability to attend at the campsite to collect the children. I was subsequently contacted by one of the camp Co-ordinators who expressed concern about Mr Ericsson behaviour and advised me that he did not under any circumstances want Mr Ericsson attending at the campsite.
11. I was disappointed for [X] and [Y] that Mr Ericsson was unable to put their interests before his own. I felt that it was particularly unfair of him to attempt to restrict their holiday activities when in fact he had elected to travel from Australia to Country P for the entire month of January 2016 thereby foregoing significant periods of time that he could have spent with the children pursuant to the Orders. Mr Ericsson has travelled to Country P for extended periods of time in each of the last three long summer school holiday periods and on those occasions when it has suited him he has simply left the children in my care.
12. Despite my frustration at the situation, upon receiving Mr Ericsson letter of 16 December 2015 (being Annexure “E-1” to Mr Ericsson Affidavit), I considered the best interests of the children and prepared a response which I sent to him on 17 December 2015. Now produced and shown to me and marked with the letters “B-2” is a true copy of the letter I sent by email to Mr Ericsson on 17 December 2015.
13. As Mr Ericsson had acknowledged in his letter “the benefit of the children being on camp” I suggested in my response that on this one occasion he could collect all three boys at 1.00 p.m. on Tuesday 22 December 2015 from their school, where the camp concluded, provided that he return them to my home at 7.00pm on Wednesday 23 December 2015. It was important to me that the children be returned to my home on the Wednesday evening as they were due to return to Mr Ericsson care again on Friday morning for an additional two nights.
14. In regard to paragraph 8 of Mr Ericsson Affidavit I deny that he was to spend time with the children during the periods set out therein. Now produced and shown to me and marked with the letters “B-3” is a true copy of the school calendar for School B being the school attended by (sic) children. The last day of Term 4 in 2015 was Wednesday 9 December 2015 and as the school holidays commenced that afternoon Mr Ericsson was not due to spend time with the children on 11, 12 and 13 December 2015 pursuant to paragraph 4(a) of the Orders. Paragraph 4(a) of the Orders specifically deals with time that the children are to spend with Mr Ericsson during the school term and this had been pointed out to Mr Ericsson in previously (sic) correspondence from my solicitors.
15. It is unclear to me why Mr Ericsson has annexed the letter from his former Solicitor Elisa Rothschild to my Solicitors dated 17 July 2015 (being Annexure “GE-3” to Mr Ericsson Affidavit). The letter proposed an increase in the time that Mr Ericsson was to spend with the children and this proposal was rejected by me. The letter was purportedly sent to propose a solution to an impasse that we had reached over the venue for changeovers but really represented an attempt by Mr Ericsson to vary the Orders significantly. On my instructions a detailed response was sent by my solicitors rejecting the proposals made by Mr Ericsson and offering as a compromise solution to the impasse. My proposal was to extend by 30 minutes the time that Mr Ericsson was to spend with the children during the school term pursuant to paragraphs 4(a) and 4(b) of the Orders provided that he return the children to my new home. Now produced and shown to me and marked with the letters “B-4” is a true copy of the letter sent by my solicitors to Mr Ericsson solicitor on 4 August 2015.
16. No reply was received to the offer contained in my solicitors’ letter of 4 August 2015 and on 14 August 2015 Mr Ericsson commenced the Initiating Application to vary the Orders referred to in paragraph 5 of this my affidavit. As previously deposed the Initiating Application was summarily dismissed by His Honour Judge Phipps’ on 27 November 2015.
17. In regard to paragraph 9 of Mr Ericsson Affidavit I say that I attended at Court on 27 November 2015 to receive Judgment in respect of my application to have Mr Ericsson Initiating Application dismissed summarily. Mr Ericsson was visibly angry and aggressive towards his Counsel in the courtroom following delivery of the Judgment and this only escalated throughout the ensuing argument over costs which was ultimately determined in my favour. Following the hearing I saw Mr Ericsson standing over his Counsel and he was screaming at him in the foyer of the Court.
18. When I left the Dandenong Court with my partner approximately 25 minutes later we walked to our car and drove down …. Roughly 100 meters from the Court we passed Mr Ericsson’s vehicle which was stationary at the side of the road. As we passed his vehicle he immediately pulled out from the curb and tailgated our vehicle for about 2 kilometres along …. It appeared to me that Mr Ericsson was attempting to intimidate me and given his previous history of violence towards myself and the children I was concerned to place them in his care that day.
19. In the Court’s Reasons for Judgment dated 18 December 2014, upon which the Orders were based, the court accepted that my previous description of Mr Ericsson behaviour was largely accurate and that the father’s behaviour shows a consistent anger management problem and obsessive behaviour. The court went on to find that there was violent, threatening or other behaviour by the husband that coerced and controlled the wife and the children and caused them to be fearful. It was family violence as defined in s.4AB of the Family Law Act 1975 (Cth).
20. As a result of my concerns and the suffering and trauma that myself and the children had previously endured due to Mr Ericsson controlling, erratic and aggressive behaviour I felt that it was inappropriate to subject (sic) to children to the risk of violence from their father whilst he was so angry. I attended at the children’s school at 2.00pm to collect them and deliberately went early to avoid a scene in front of the children, their friends and other parents as had occurred at the school Speech Night in December 2014. I also wanted to avoid any confrontation with Mr Ericsson. I had a genuine fear for the safety of the children and acted to protect them.
21. In regard to paragraph 10 of Mr Ericsson Affidavit I say that pursuant to the Orders Mr Ericsson was not to spend time with the children on 18, 19 and 20 September 2015. I refer to the School Calendar being Annexure “B-3” to this my Affidavit which details that Term 3 concluded at the end of school on 18 September 2015. As previously explained paragraph 4(a) of the Orders deals with time that Mr Ericsson is to spend with the children during the school term and not the holiday period. Now produced and shown to me and marked with the letters “B-5” is a true copy of an email forwarded by my Solicitor, Anthony Rockman, to Mr Ericsson former Solicitor, Elisa Rothschild, on 18 September 2015 in respect of this issue. This same issue had arisen at the end of Term 2 and Mr Ericsson was referred to the wording of the Orders at that time.
22. In regard to paragraph 11 of Mr Ericsson Affidavit I deny that I failed to facilitate an exchange for the children on 6 July 2015. Now produced and shown to me and marked with the letters “B-6” are copies of correspondence that passed between Mr Ericsson and my Solicitors in the period from 24 June 2015 to 10 July 2015. I have annexed the correspondence in chronological order (although several of Mr Ericsson letters are incorrectly dated) with covering emails so that the true dates of the correspondence are apparent. The correspondence annexed to Mr Ericsson Affidavit is not a complete copy of the correspondence exchanged during the relevant period. Significantly, Annexure “E-11” to Mr Ericsson Affidavit is an email which was sent by my Solicitors to Mr Ericsson on 2 July 2015 detailing that the children would be available for collection from my home on 6 July 2015. Mr Ericsson did not want to travel to my home to collect the children and therefore did not spend time with them on 6, 7 or 8 July 2015.
23. The suggestion that I somehow contravened the Orders on this occasion in (sic) particularly disingenuous as Mr Ericsson is well aware that the children were made available for him to collect. The only reason Mr Ericsson did not spend time with them was his refusal to collect them from my new home and as previously deposed the issue of changeovers remains contentious.
24. At the time the Orders were made, Mr Ericsson and I had an established pattern for changeovers. He always collected the children either from school or my home at the commencement of the time that he was to spend with them and he would then return them to my home at the conclusion of the time that he was to spend with them. On or about 13 June 2015 I move (sic) residence from Suburb P to Suburb D as I was unable to afford a home suitable to accommodate the children and their needs in the Suburb P area. Immediately thereafter Mr Ericsson refused to continue the ongoing arrangement that we had kept since separation and he unilaterally decided that I would need to undertake all changeovers at his home notwithstanding the fact that he remained unemployed and had plenty of time to transport the children.
25. As previously deposed, in the letter from my solicitors to Mr Ericsson of 4 August 2015 (being Annexure “B-4” to this my Affidavit) I proposed a compromise in respect of this issue however Mr Ericsson has not accepted this and by default I am forced to collect the children on each occasion from him. Since moving to Suburb D I have had to collect the children from Mr Ericsson on every occasion during the school term that he has spent time with them, save for one occasion when he returned them to their school for a concert. Mr Ericsson simply refuses to take on any responsibility for the transportation of the children.
26. In regard to paragraph 12 of Mr Ericsson Affidavit I say that the terms of paragraph 8(a) of the Orders are clear and unambiguous. The Orders were made after taking into account the evidence given at trial by the parties and the Family Report writer Ms Q and they provide for Mr Ericsson to spend time with the children in accordance with his capabilities. I have carefully complied with my obligations pursuant to the Orders. Mr Ericsson fails to take into account that on the occasions that alternate weekends he would ordinarily spend with the children follow the end of a school term he in fact gets to spend additional time with the children as the term holiday arrangements commence.
27. I have not suspended any time during term breaks or summer holidays as alleged by Mr Ericsson in paragraph 12 of his Affidavit but rather we revert to paragraph 8 of the Orders during these periods. The distance between my home and Mr Ericsson is of no relevance save that much conflict has arisen over the question of who is to transport the children for changeovers.
28. In regards to paragraph 13 of Mr Ericsson Affidavit I deny that the children were to spend time with Mr Ericsson on 26, 27 and 28 June 2015. I again refer to the School Calendar being Annexure “B-3” to this my Affidavit. Term 2 concluded on 26 June 2015 and Paragraph 4(a) of the Orders did not apply. I did not send the children to school on the last day of Term 2 as Mr Ericsson was aware of my view in respect of the Orders and I wanted to avoid any conflict at the school for the benefit of the children.
29. In response to paragraph 14 of Mr Ericsson Affidavit I say that I immediately suspended the time that he was to spend with the children after he assaulted my partner Mr Jarrold and breached an existing Intervention Order in the presence of the children on 8 December 2014. During the incident, despite the pleas of school staff and other parents Mr Ericsson refused to let go of [X] who he held for an extended period of time. I do not intend to annex the Affidavit that I filed on 17 September 2015 which is on the Court file and responds to the matters raised in Mr Ericsson Affidavit affirmed on 11 August 2015 (being Annexure “E-14” to Mr Ericsson affidavit) but simply refer to and repeat the matters stated in paragraphs 21, 22 and 41 thereof. Mr Ericsson has been charged by Victoria Police as a result of the events that occurred on … 2014 and a contested hearing has been set down to take place on 8 and 9 June 2016.
30. Immediately following the attack at Location N I was concerned about the state of Mr Ericsson mental health and extremely worried about leaving the children in his care. Mr Ericsson acted in a violent and extremely aggressive manner in front of the children and in view of his previous domestic violence towards myself and the children I could not risk their safety. The children were also traumatised by Mr Ericsson conduct and were fearful of his anger. On 11 December 2014 my Solicitors forwarded a letter to Mr Ericsson detailing my position in respect of the children spending time with him. The letter explained the trauma that has been suffered by the children and noted that they were not in a fit state to spend time with him. My Solicitors also requested details of any treatment that Mr Ericsson was receiving for his mental health issues and sought confirmation that he had been taking the medication previously prescribed by his treating doctors. Now produced and shown to me and marked with the letters “B-7” is a true copy of the letter forwarded by my Solicitor to Mr Ericsson on 11 December 2014…”
Consideration
Count 1
This count was that the mother contravened paragraph 8(b) of the Orders without reasonable excuse on 21 December 2015. The relevant order in relation to this count was for school holiday time for the children with the father.
The mother admitted the contravention occurred but maintained she had a reasonable excuse. Counsel for the mother told the Court her client relied on s.70NAE(5). Given the mother’s admission the father was cross examined on his affidavit evidence filed 21 December 2015 relevant to this contravention. Attached to his affidavit was an email making clear the parties were in negotiation prior to the two eldest children attending the camp. The father conceded in cross examination the two eldest children had attended the camp in previous years and that the mother had attempted to negotiate makeup time. It was also clear from that cross examination that there was no agreement on that issue.
It was put to the father in cross examination that the children were too upset to go to him. The father rejected that claim. The father also denied being aggressive.
The mother relied on her affidavit filed 25 February 2016 and the evidence contained therein (the relevant sections of which (paragraphs 9 to 13) have been set out earlier) in support of her contention that she had a reasonable excuse for contravening the Orders.
Attached to that affidavit was an email from the mother to the father which appeared at odds with her claim of a reasonable excuse before the Court relying on s.70NAE(5). It was silent in relation to the whereabouts of the youngest child and corroborative of what transpired to be a common theme in a number of the alleged contraventions. This theme was a dispute over responsibility for transport or changeover given the parties inability to negotiate a compromise in the face of their apparent agreement that the Orders didn’t specifically address that issue.
In cross examination before the Court the mother’s evidence appeared to place most emphasis on her concerns about the father attending the camp to collect the children. However there was no independent evidence corroborating those concerns and the mother’s evidence in cross examination on this contravention did not assist her in establishing that she had a reasonable excuse for contravening the Orders.
The mother’s answer that she had a reasonable excuse relying on s.70NAE(5) for this contravention was at odds with her contemporaneous correspondence with the father where she told him she was the “primary carer” and he would “need to fully co-operate” if children’s arrangements where to be workable.
The mother didn’t deny unilaterally enrolling the two older children in the camp. Given the evidence before the Court and the provisions of s.70NAE(5) and s.70NAF I am not satisfied the mother had a reasonable excuse for contravening paragraph 8(b) of the Orders on 21 December 2015.
Accordingly I find this contravention proven without reasonable excuse.
Count 2
This count was that the mother contravened paragraph 4(a) of the Orders on 11 December 2015. The relevant order alleged to have been contravened in relation to this count was for weekend time for the children with the father. The mother denied the allegation.
In his evidence before the Court the father conceded he had deposed the Orders “lacked clarity” and that in relation to this allegation by the date of the alleged contravention the school holidays had already started. In final submissions the father conceded this alleged contravention had not been made out.
That concession was well made and no prima facie case has been established and this allegation will be dismissed.
Count 3
This count was that the mother contravened paragraph 4(a) of the Orders without reasonable excuse on 27 November 2015. The relevant order in relation to this count was also for weekend time for the children with the father. The mother admitted the contravention occurred but maintained she had a reasonable excuse. Counsel for the mother told the Court her client relied on s.70NAE(5). The mother’s evidence in response to the father’s case on this contravention was set out in her affidavit filed 25 February 2016 at paragraphs [17] to [20].
The father directly challenged the mother’s evidence on this count in cross examination. The father put to the mother that contrary to her evidence he had not been angry at Court on 27 November 2015 and had not tailgated her after Court. Whilst the mother maintained her opinion she did not point to any independent or corroborative evidence for her claims.
Given the evidence before the Court and the provisions of s.70NAF I am not satisfied to the requisite degree that the mother had a reasonable excuse for contravening paragraph 4(a) of the Orders on 27 November 2015.
Accordingly I find this contravention proven without reasonable excuse.
Court 4
This count was that the mother contravened paragraph 4(a) of the Orders without reasonable excuse on 18 September 2015. The relevant order alleged to have been contravened in relation to this count was for weekend time for the children with the father. The mother denied this allegation.
As with his evidence in relation to count 2 the father conceded in his evidence before the Court that on the date of this alleged contravention school had already finished. In his final submissions the father conceded this alleged contravention had not been made out. This concession was also properly made and as no prima facie case has been established this allegation should also be dismissed.
Count 5
This count was that the mother had contravened 8(b) of the Orders on 6 July 2015 without reasonable excuse. The relevant order alleged to have been contravened in this count provided for school holiday time for the children with the father. The mother denied this allegation.
In his evidence before the Court the father was cross examined about the relevant sections of his affidavit for the purpose of this alleged contravention. The father acknowledged in cross examination that the Orders did not specifically provide for who should collect the children during school holiday time. The father acknowledged the mother had attempted to address this issue with him through her solicitor. The father also admitted he had not attended to collect the children.
Given that evidence it was not surprising that the father in submissions conceded this contravention had not been established. On the evidence before the Court no prima facie case has been established and this allegation will be dismissed.
Count 6
This count was that the mother contravened paragraph 4(a) of the Orders on 26 July 2015 without reasonable excuse. The relevant order alleged to have been contravened by this count provided for the children to spend weekend time with the father. The mother denied this allegation.
As with counts 2 and 4 the father conceded in his evidence before the Court in cross examination that on the date of this alleged contravention school holidays had started as school ended that day. As with counts 2 and 4 the father in submissions conceded this count had not been established. On the evidence before the Court I am not satisfied a prima facie case has been established and accordingly this allegation should be dismissed.
Count 7
This count was that the mother contravened paragraph 8(b) of the Orders. In the contravention application filed 21 December 2015 it was pleaded this was from “12/12/2014 to 28/12/2014”.
The relevant order (to the extent it was operational) provided for the children to spend time with the father during school holidays. Notwithstanding the error in the pleaded allegation (given the Orders were not made until 18 December 2014) the mother (who was represented) admitted the contravention occurred but maintained she had a reasonable excuse. Counsel for the mother told the Court her client relied on s.70NAE(5).
It was clear from the parties evidence in relation to this allegation that events pre-dating the making of the Orders were relevant for the purposes of this allegation. Those events concerned an incident at Location N in early December 2014.
In relation to this incident in Ericsson & Ericsson(No.2) [2015] FCCA 3146 (“Ericsson No.2”) Judge Phipps recorded the parties evidence at that time about this incident as follows:
“12.8 December 2014 was the children’s schools Speech Night at Location N. The father attended with the mother’s agreement. The parties disagree about what happened.
13.The father says that after the conclusion of the speech night he was standing in the building entrance when he saw his son [Y] beside the mother’s partner who was holding [Y]’s right hand. He said his son identified him and attempted to run towards him. He says that the mother’s partner violently pulled back dragging [Y] down the stairs away from the main exit to a further exit. The father says [Y] was in distress, crying and screaming repeatedly “let me go”.
14.The father says he was concerned for [Y]’s safety and requested the mother’s partner to release him. He says that the mother’s partner lifted [Y] by his left arm, held him into his chest and started running. He says that they were stopped at the crossing by a crowd of parents and the father says he again requested the release of the child. He says that the partner pushed him with his right hand and he was compelled to push away from him. He says bystanders and security intervened and released the child from the mother’s partner’s arms. He says that the other two children, [X] and [Z] were terrified. He says [X] said that he did not want to go to his mother’s place, he had been bullied by the mother’s partner’s son and did not want to go back. The College (omitted) from the school and the Deputy Principal spoke to [X] and eventually the children went home with their mother.
15.The mother and her partner say that they saw the father in the main exit and went to another exit further to the left. They walked towards the zebra crossing to go to the car park and the wife says she heard the husband yelling “let go of my son”. [Y] was being carried by her partner. Both she and her partner say that the father attacked the partner from behind and tried to drag [Y] away. There was a scuffle and two men from the crowd restrained the father. She claims the father tried to hit her.”
Later in Ericsson No.2 His Honour at paragraphs [33] to [36] proceeded to consider whether even if the father’s version of those events was accepted that would amount to sufficient changed circumstances to warrant the Orders being changed. Ultimately His Honour concluded that it was not in the best interests of the children for there to be a reopening of the Orders. As noted earlier the father has not sought to appeal either Ericsson & Ericsson [2014] FCCA 2953 (“Ericsson No.1”) or Ericsson No.2.
In her evidence before the Court, supplementing that in her affidavit filed 25 February 2016 the mother gave evidence that the father had been charged by police as a result of the incident referred to above. The mother’s evidence, which wasn’t challenged by the father, was that as a result the father subsequently pled guilty to breaching an intervention order. I have already set out the approach determining whether there is a reasonable excuse. Having regard to the provisions of ss. 70NAE(5) and 70NAF I am satisfied the mother has established that, whilst the contravention occurred, she had a reasonable excuse.
Count 8
In the contravention application filed 26 February 2016 the father alleged by this count that the mother contravened paragraph 8(b) of the Orders from 25 December 2015 to 27 December 2015 without reasonable excuse.
The order alleged to have been contravened by this count provided for the children to spend school holiday time with the father. The mother denied this allegation.
In his evidence before the Court the father was cross examined about the relevant sections of his affidavit filed 26 February 2016 for the purpose of this alleged contravention. The father acknowledged (as he had done in relation to a number of the other counts) that this allegation concerned time during school holidays, there was a “lack of clarity” regarding who was responsible for changeover during such periods and he had not attended at the mother’s home to collect the children.
On the evidence before the Court no prima facie case has been established and the allegation will be dismissed.
Count 9
Finally by this count the father alleged that order 4(a) of the Orders was contravened by the mother without reasonable excuse. The order alleged to have been contravened by this count provided for the children to spend weekend time with the father. The mother also denied this allegation.
The father was cross examined about the relevant sections of his affidavit filed 26 February 2016 for the purpose of this alleged contravention. It was put to the father as school in 2016 started on 29 January 2016, and he was away overseas on the first weekend after that, the Orders had not been contravened. The father did not agree.
The relevant order provides for the children to spend time with the father each “alternate weekend”. It would be a strange interpretation of “alternate” to say it is the first weekend after the start of school term.
Accordingly I am satisfied the father has established that paragraph 4(a) of the Orders was contravened. However that isn’t the end of the matter. In her evidence before the Court relevant to this allegation the mother told the Court she had asked her solicitor for advice on how the Orders ought to be interpreted. The mother told the Court that she believed the parties had been following a “pattern” that started in August 2013. This evidence was not challenged by the father.
Section 70NAE(2) provides that a person is taken to have a reasonable excuse for contravening an order because or substantially because he or she did not understand the obligations imposed and the count is satisfied the respondent ought be excused.
If one thing is pellucidly clear having heard the evidence in this matter it is that (subject to my findings to the contrary) both parties have an imperfect understanding of the Orders. The involvement of solicitors has not improved that or assisted in resolving or agreeing on a much needed resolution over their differing interpretations of same.
Given the provisions of s.70NAF and s.70NAE(2) I am satisfied that whilst the contravention occurred the mother had, in the particular circumstances of this matter, a reasonable excuse.
In doing so it is noted what s.70NAE(3) provides and this will be addressed as the mother is represented so advice and an explanation can be given on same along with any necessary orders arising from the findings in relation to the above counts.
What order should be made
The orders that can be made in a contravention application depend on whether the contravention/s alleged is not established, the contravention is established but there is a reasonable excuse, or the contravention is established and there is no reasonable excuse.
If a Court is considering contravention proceedings, regardless of whether the contravention is established or is reasonably excused, the Court has powers under s.70NBA of the Act to vary the parenting orders.
Section 70NBA states:
“Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
…
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.”
It is clear from the evidence that the father feels frustrated by the mother’s move to Suburb D after the Orders were made. It is also clear from the evidence that for the parties at least they believe there are a number of lacunas in the Orders. These include:
a)when alternate weekend time stops before and starts again after time over school holidays; and
b)responsibility for changeover.
In relation to the findings with respect to counts 2, 4, 5, 6 and 8 I have considered the provisions of Subdivision C of Division 13A. However no application for costs was foreshadowed or made. In any event given the other findings I am not satisfied there are justifying circumstances or that it is appropriate to make such an order.
Given the findings with respect to counts 1 and 3 I have considered the powers of the Court under s.70NEB and in particular s.70NEB(4). Under either subdivision D or E of Division 13A the Court can given the findings set out earlier make an order for makeup time. I am satisfied it would be in the best interest of the children to do so. This should occur for an additional weekend over each of the next two months.
Given the evidence before the Court and that under s.70NBA the Court is able to vary the Orders to deal with the problems that it would appear the evidence of the parties suggest led to the contravention applications, in the first place that seems to be an appropriate course.
As was said in Spencer & Verity [2012] FamCAFC 210 any variation should be of a minor nature and not much more than tinkering. In doing so the Court has regard to the best interests of the children as the paramount consideration in determining whether to vary the Orders and take into account the provisions in s.70NBA(2) if they are relevant (and they aren’t).
In Ericsson No.2 Judge Phipps for the reasons set out therein rejected the father’s application to revisit the Orders on the basis the mother had moved to Suburb D and that meant additional travel time. The decisions in Ericsson No.1 and Ericsson No.2 were not appealed and I am entitled to proceed on the basis that the arrangements and responsibility for time and travel set out therein are in the children’s best interests.
I am satisfied it would be in the best interests of the children to clarify responsibility under the Orders for changeover where it doesn’t otherwise occur at the children’s schools and make clear when school holiday time starts and weekend time stops.[10]
[10] In doing so I have had regard to the approach in Goode & Goode (2006) FLC 93-286, the relevant matters in s.60CC and the provisions of Part VII so far as they are relevant.
The Orders dated 18 December 2014 should be varied by adding the following orders:
a)The holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
Conclusion
For the above mentioned reasons there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 24 August 2016
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