ERICSSON & JARROLD (No.8)
[2019] FCCA 3201
•8 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & JARROLD (No.8) | [2019] FCCA 3201 |
| Catchwords: FAMILY LAW – Parenting – two contravention applications – five alleged contraventions – applications dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB. |
| Cases cited: Ericsson & Beesley (No.3) [2016] FCCA 2111 |
| Applicant: | MR ERICSSON |
| Respondent: | MS JARROLD |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 30 April 2019 |
| Date of Last Submission: | 30 April 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 8 November 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondent: | Ms Jenkins |
| Solicitors for the respondent: | Rockman & Rockman |
ORDERS
The father’s contravention application filed 12 October 2018 is dismissed.
The father’s contravention application filed 13 February 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Jarrold (No.8) 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 JARROLD |
Respondent
REASONS FOR JUDGMENT
Introduction
The court has before it two contravention applications both filed by the applicant father, one on 12 October 2018 (“the October 2018 application”), the other on 13 February 2019 (“the February 2019 application”). The contravention applications were both heard by me on 30 April 2019. The father appeared on his own behalf and the mother was represented by counsel.
The father alleges that the mother contravened the final parenting orders made by this court on 18 December 2014 (“the 2014 final orders”) on five occasions. For reasons given orally at the hearing of this matter, I struck out two of the alleged contraventions.
The remaining contraventions allege that:
a)during the period from 21 to 28 January 2018, the mother failed to inform the father of her intention to remove the children from the State of Victoria no less than 7 days prior to doing so, and travelled interstate to NSW with the children and did not inform the father of their destination and a telephone number for such period in breach of order 14 of the final orders (“first alleged contravention”);
b)on 25 November 2017, 24 September 2018 and 30 October 2018, the mother did not facilitate the children’s time with the father for the children’s religious birthdays, nor did she provide alternative make up time (“second alleged contravention”); and
c)for the period from 8 to 10 February 2019, the mother, without reasonable excuse, refused to allow the children to spend time with the applicant in breach of order 4(a) of the final orders (“third alleged contravention”).
At the commencement of the proceedings, the mother pleaded not guilty of each of the three alleged contraventions.
Factual background
Before addressing each of the alleged contraventions, I set out a brief background to these proceedings.
The parties commenced living together in 1993 and separated in 2012. There are three children of the relationship, [X] born … 2003 (“[X]”), [Y] born … 2006 (“[Y]”) and [Z] born … 2008 (“[Z]”) (“the children”).
The father commenced proceedings in this court on 21 May 2013 seeking parenting and property orders.
In July 2013, the mother obtained a final intervention order at Town A Magistrates’ Court.
A four day final hearing was conducted in May 2014 and final orders were made by Judge Phipps on 18 December 2014 (“the 2014 final orders”).
In June 2015, the mother relocated to Town B.
In August 2015, the father filed a second initiating application, which was ultimately dismissed by his Honour Judge Phipps in November 2015 and the father was ordered to pay the mother’s costs fixed in the sum of $5,889.
The father then filed a contravention application against the mother in December 2015 and a further contravention application in February 2016 (“the father’s contravention applications”).
The children [Y] and [Z] commenced school at Primary School C in July 2016 and shortly thereafter, the father filed a third initiating application.
The contravention applications were heard by his Honour Judge O’Sullivan on 21 July 2016. His Honour found that the mother had contravened the 2014 final orders on two occasions without reasonable excuse and varied the 2014 final orders with respect to non-school changeover location (“the July 2016 orders”).[1]
[1] Specifically, his Honour ordered that where changeover does not occur at school, the father is to collect the children from the mother at the commencement of time and deliver them to her home at the conclusion of time.
On 2 November 2016, the mother filed a contravention application (“the mother’s first contravention application”).
In January 2017, the child [X] commenced secondary school at High School D.
On 17 February 2017, the mother filed an amended contravention application (“the mother’s amended contravention application”).
The return of the mother’s amended contravention application was heard before her Honour Judge Small on 23 February 2017, at which time her Honour appointed an Independent Children’s Lawyer, ordered the preparation of a section 62G family report and listed the matter for final hearing on 11 and 12 September 2017.
The mother filed a second contravention application in April 2017 and a third contravention application in August 2017.
On 11 and 12 September 2017, her Honour Judge Small heard the father’s third initiating application and also found that the father had contravened both the 2014 final orders and the July 2016 orders made by Judge O’Sullivan on five occasions without reasonable excuse. Her Honour ordered that the father complete a post-separation parenting course and placed him on a good behaviour bond with a surety of $1,000.
The mother filed a fourth contravention application in November 2017 (“the mother’s fourth contravention application”).
In January 2018, Judge Small further amended the 2014 final orders as follows:
a)removing the midweek time that the father is to spend with the children in the alternative week; and
b)clarifying that the mother is to nominate the high school the children are to attend.
In August 2018, the father filed an application in a case seeking that her Honour Judge Small recuse herself.
On 12 October 2018, the father filed:
a)a fourth initiating application seeking to vary the 2014 final orders (as amended); and
b)one of the contravention applications which are presently before the court.
On 28 November 2018, Judge Small found that the father contravened the 2014 final orders on five occasions without reasonable excuse. Her Honour placed the father on a further three month bond to commence at the conclusion of the two year good behaviour bond made on 12 September 2017 (“the November 2018 orders”).
In December 2018, the father lodged an appeal against the November 2018 orders made by Judge Small.
On 13 February 2019, the father filed a second contravention application, which is currently before the court.
On 7 March 2019, the father filed an amended initiating application.
It is against this background that the court is asked to consider the father’s contravention applications filed 12 October 2018 and 13 February 2019.
Evidence
The father relied upon:
a)his affidavit in support of the October 2018 application affirmed on 12 October 2018; and
b)his affidavit in support of the February 2019 application affirmed 13 February 2019.
The mother did not file an affidavit in relation to the contravention applications; however, she did give evidence in chief in response to the three alleged contraventions now before the court.
Both parties were subject to cross examination.
I will deal with the evidence given by each of the parties in relation to each contravention below.
Family Law Act 1975 (Cth)
Section 70NAA of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
(1)This division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
(2)…
(3)The other orders that the court can make depend on whether:
(a)a contravention is alleged to have occurred but is not established (Subdivision C); or
(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Section 70NAC of the Act further provides:
A person is taken for the purpose of this Division to have contravened an order under this Act affecting children, if and only if:
(a)where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order… (emphasis in original).
Section 70NAE of the Act sets out the circumstances in which a person is taken to have had, for the purposes of Division 13A, a “reasonable excuse for contravening” an order.
Section 70NAF of the Act provides that in a case such as this, the standard of proof in a contravention proceeding is on the balance of probabilities. That includes the standard of proof to determine whether a person who contravened an order had a reasonable excuse for the contravention.
Consideration
First alleged contravention
The father alleged that the mother breached order 14 of the 2014 final orders during the period from 21 to 28 January 2018 by:
a)failing to inform the father of her intention to remove the children from the State of Victoria not less than 7 days prior to doing so;
b)travelling interstate to NSW with the children; and
c)failing to inform the father of their destination or a contact telephone number for that period.
Order 14 of the 2014 final orders provides:
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 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.
The father’s evidence in relation to the first alleged contravention was that the mother travelled to NSW with the children between 22 and 28 January 2018 without giving him prior notice.
Whilst the mother conceded that she in fact travelled with the children to Sydney on Australia Day 2018, she denied contravening order 14 of the 2014 final orders and gave the following evidence:
a)she and her family had booked a motor home for that week and also booked caravan parks in Victoria to stay at during that week;
b)whilst they were staying in Town E, the children asked if the family could travel to Sydney for the festivities the following day on Australia Day;
c)she told the children that they would have to drive up and back in a day, so if the children were able to get up early and get ready then they could go; and
d)the family drove up to Sydney arriving at about lunch time, spent some time looking at the boats in the harbour and then drove back to the caravan park in Town E where they then spent the night.[2]
[2] Transcript page 69 at line 32 to page 70 at line 3.
The mother stated that when she arranged the said holiday, she had no intention of travelling interstate with the children.[3] Rather the decision to do so was made on the spur of the moment. She said that she therefore could not comply with the order because the decision to travel was made the day the left and therefore she could not give him the requisite period of notice.[4] Moreover, the mother said that they simply took a day trip to Sydney and returned that evening.[5]
[3] Transcript page 83 at lines 5 to 6.
[4] Transcript page 83 at lines 8 to 11.
[5] Transcript page 83 at lines 11 to 12.
I accept the mother’s evidence about the circumstances which gave rise to this trip to Sydney. In those circumstances, I also find that the mother has not acted in breach of order 14 of the 2014 final orders. Order 14 requires either parent to give 7 days’ notice of their intention to travel interstate. In this instance, the mother took a holiday with the children in which she did not intend to travel interstate. At the point at which the children asked if they could drive up to Sydney, the mother could not physically provide the father with seven days’ notice of the trip.
Having regard to the totality of the evidence, the father has not established that the mother has contravened the order within the meaning of section 70NAC. The father has not established that the mother intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order.
For each of these reasons, I find the first alleged contravention not proven.
Second alleged contravention
The second alleged contravention relates to the father’s claim that the mother did not comply with order 11(b) of the 2014 final orders as she failed to facilitate time with the children on each of their religious birthdays and did not provide make up time to the father.
There was a dispute between the parties as to whether the birth dates specified in the father’s contravention application are the correct dates for the children’s birthdays. In any event, for the reasons which follow, nothing turns on this dispute.
Order 11(b) of the 2014 final orders relevantly provides:
THAT the children spend time with the husband on their 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.
In relation to this issue, the father deposed to the following:
Order 11(b) calls for the children to spend their religiou Birth day with me, Ms Jarrold did not facilitate the children’s time with me on the following dates corresponding to each child birth day. Nor did she provide alternative time as a makeup time
(a)[Y] Birth day … 2017
(b)[Z]’s Birth day … 2018
(c)[X]’s Birth day … 2018 (sic).[6]
[6] Affidavit of the father affirmed and filed 12 October 2018 at paragraph [12].
The mother’s evidence was that:
a)[X]’s birthday was actually on … 2018, not … 2018 as stated by the father;
b)both [Z] and [Y]’s birthdays fall on religious holidays which mean that driving is not permitted on those days.
The father conceded this in the course of his cross examination.[7] [T46]
[7] Transcript page 46.
The father also conceded that the 2014 final orders require him to collect the children for any time spent on their birthdays as a result of the 2016 orders made by Judge O’Sullivan. Order 5(b) of those orders relevantly varied the 2014 final orders by including the following:
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.[8]
[8] Order 5(b) of the orders made by his Honour Judge O’Sullivan made on 24 August 2016.
The father conceded that he did not attend the mother’s home on the children’s religious birthdays to collect them. Indeed he conceded that as [Z] and [Y]’s religious birthdays fall on religious holidays, he could not have done so as he is not permitted to drive.[9]
[9] Transcript page 46 at line 43 to page 47 at line 18.
The mother also gave evidence that 25 November 2017, which is said to have been [Y]’s religious birthday, fell on a Saturday and she did not receive any correspondence from the father seeking to spend time with [Y] on this day.[10]
[10] Transcript page 70 at lines 29 to 35.
In light of this evidence and the father’s concessions, when regard is had to the terms of order 11, the father has not established that the mother has contravened this order for the following reasons:
a)Order 11 does not require the children to spend time with the father on days when driving is prohibited. I am satisfied on the basis of the father’s evidence that driving was prohibited on [Z] and [Y]’s religious birthdays on the basis that they fall on a holiday. I am also satisfied that as … 2017, being the date which the father asserts was [Y]’s religious birthday, was a Saturday, again order 11 did not apply as it was a day on which driving was prohibited.
b)Even if this was not the case, on the basis of the father’s own evidence, he did not request time on these dates, he did not communicate with the mother about this issue nor did he attend the mother’s home to effect changeover on any of these dates.
To the extent that the alleged contravention relates to a failure to offer or facilitate make up time, order 11 is silent on the question of make-up time. Therefore, there is no obligation on the mother to offer or facilitate any such time. This was put to the father in the course of cross-examination. In response the father said:
…the mother should… offer a substitute day for me to spend time with the children. That’s the right thing to do.[11]
[11] Transcript page 48 at lines 16 to 17.
The father also conceded that he did not request any make up time from the mother, although he said that this was due to the pattern of ‘aggressive’ responses that he has received in the past when he has sought to engage in such discussions.[12]
[12] Transcript page 49 at lines 44 to 46.
For each of these reasons, the father has not established to the requisite standard that the mother has contravened order 11(b) of the 2014 final orders.
For each of these reasons, I therefore find the second alleged contravention not proven.
Third alleged contravention
It was alleged by the father that for the period from 8 to 10 February 2019, the mother refused to allow the children to spend time with the father pursuant to order 4(a) of the 2014 final orders, without reasonable excuse.
The mother pleaded not guilty to this alleged contravention.
This alleged contravention essentially comes down to a dispute between the parties as to the proper interpretation of the orders. In addition to the 2014 final orders themselves, the father also relied upon the decision of Judge O’Sullivan in the contravention proceedings, reported as Ericsson & Beesley (No.3) [2016] FCCA 2111 in which it was found that the mother had contravened order 4(a) of the 2014 final orders.
In particular, the father relied upon clarification of the meaning of the term ‘alternate’ in order 4(a) as determined by Judge O’Sullivan in his Honour’s reasons for judgment.[13]
[13] Ericsson & Beesley (No 3) [2016] FCCA 2111 at [73]-[76].
It was the father’s evidence that following this clarification, in each new term, the first weekend is allocated to the mother. On this basis:
a)Term 1 in 2019 commenced on 30 January 2019 for [Y] and [Z]; and
b)Term 1 in 2019 commenced on 31 January 2019 for [X].
The father gave evidence that the effect of this was that the children were to spend the first weekend after Term 1 had commenced with the mother.[14]
[14] Transcript page 61.
It is common ground that the mother believed that the children would be spending that time with the father and therefore, she did not arrange to collect the children from school. Indeed, her evidence was that she and her husband went away for the weekend Region F.[15]
[15] Transcript page 71 at lines 2 to 5.
It is also common ground that after school, [X] called his father about being collected from the station after school. The father told him that it was not his weekend with the children. Ultimately, [X] contacted the mother, who returned from Region F and collected the children from school. The children therefore did not spend time with the father on that first weekend of Term 1 in 2019.[16]
[16] Transcript page 71 at lines 6 to 14.
It is also common ground that the children spent the following weekend with the mother, although the father maintains that they should have spent this with him.
The mother gave evidence that a clear reading of the orders mandates that if the children spent time with one parent on the last weekend of the holidays, they would spend the following weekend with the other parent.[17]
[17] Transcript page 71.
Time spent with the father is dealt with both at orders 4 and 8 of the 2014 final orders. Order 4 deals with time spent during school term periods and order 8 deals with time spent during school holiday periods.
Order 8 of the 2014 final orders relevantly provides:
THAT 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 effect of order 8 in each of the short school term holidays each year is clear: they spend week one with the mother and in week two, they spend Monday to Wednesday and then Friday to Sunday with the father. The overall effect of this arrangement is that the children will always spend the last weekend of the short school term holidays with the father.
When order 8 is read together with order 4, it is clear that the children will always spend the first weekend of terms 2, 3 and 4 with the mother, having spent the last weekend of the term 1, 2 and 3 holidays with the father.
However, the same does not necessarily apply in relation to the long summer school holidays because they are not always an even number of weeks. It is possible therefore, as appears to have been the case in the 2018/19 summer holidays, for the children to spend the last weekend of the summer school holidays with the mother. In those circumstances, the first weekend in term 1, being the alternate weekend under order 4(a), was to be spent with the father.
I do not see that anything in his Honour Judge O’Sullivan’s judgment in Ericsson & Beesley (No 3) [2016] FCCA 2111 that is inconsistent with this analysis.
For these reasons, I find the third alleged contravention not proven.
Conclusion
Having found none of the alleged contraventions proven, I dismiss both of the father’s contravention applications.
For completeness, I have given consideration as to whether I ought to vary the 2014 final orders (as amended by Judge O’Sullivan) pursuant to section 70NBA of the Act. However, having regard to the extensive and protracted history of this matter, I am not satisfied that any variation would avoid further litigation.
The orders in relation to the children spending time with their father on their religious birthdays do appear to be problematic, particularly in relation to both [Z] and [Y], whose religious birthdays always fall on religious holidays when driving in prohibited. However, by their terms, the orders made clear that they would only require such time to be spent on days when driving was not prohibited and expressly did not provide for make up time. I note that the father did not exercise any right to appeal those orders at the time they were made.
In those circumstances and on the basis of the totality of the evidence before me, I am not satisfied that it is in the children’s best interests to vary the 2014 final orders.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 8 November 2019
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