FEGLEY & SALWAY
[2016] FamCA 168
•17 March 2016
FAMILY COURT OF AUSTRALIA
| FEGLEY & SALWAY | [2016] FamCA 168 |
| FAMILY LAW – CONTRAVENTION – Where the father asserts the mother has breached orders of the court – Where the mother asserts that she has a reasonable excuse - Where the mother asserts that the child was suffering a medical condition – Where the mother asserts that she did not understand the orders of the court - Where the mother was found to have a reasonable excuse – Where the father’s Application for Contravention on the second charge is dismissed. FAMILY LAW – COSTS – Where the father has conducted the proceedings in a particular manner – Where the father has been wholly unsuccessful – Where it is just that a costs order be made in the mother’s favour – Where the father has been wholly unsuccessful in respect of his opposition to the costs application – Where it is just that a costs order be made in respect of the costs application |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Fegley |
| RESPONDENT: | Ms Salway |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ng |
| FILE NUMBER: | SYC | 6044 | of | 2013 |
| DATE DELIVERED: | 17 March 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 19 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Breeze |
| SOLICITOR FOR THE APPLICANT: | H A Miedzinski Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Crawford Ryan Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners |
ORDER made 19.2.16
The father’s Application for Contravention filed 12 February 2015 be dismissed.
Orders
The father pay to the mother her costs in respect of the Application for Contravention filed by the father on 12 February 2015 on a party/party basis and the costs of the oral costs application made by the mother on 19 February 2016, as agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fegley & Salway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC 6044 of 2013
| Mr Fegley |
Applicant
And
| Ms Salway |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 14 December 2015 I found that the father had established a prima facie case that on 5 February 2015 the mother contravened order 4(b) of 12 June 2014. The father’s Application for Contravention was adjourned to enable the mother to file and serve evidence upon which she wished to rely in respect of reasonable excuse.
On 19 February 2016 the hearing in relation to the mother’s reasonable excuse concluded shortly before 5pm. I made an order dismissing the father’s Application for Contravention against the mother and reserved reasons. These are those reasons.
In my Reasons for Judgment dated 14 December 2015 at [22] to [29] I set out the following:
22.The father further asserts that on 5 February 2015 at 3.00pm at [J School], the mother breached order 4(b) made 12 June 2014 which is in the following terms:
4. The children [B], [C] and [D] are to spend time with the father as follows:
....
(b)In the off week during the school term from immediately after school on Thursday until the commencement of school on Friday morning.
23.It is not controversial that 5 February 2015 was a Thursday on which [D] was scheduled to be with his father. It is also an agreed fact that [D] did not go to school on this day.
24.At [35] of his affidavit, the father refers to a text message that he received from the mother at 3.56pm which is in the following terms:
[D] is unwell. He didn’t attend school. He will be staying with me.
25.The father replied:
Get him to call me on my mobile. I would like to speak to him.
26.The father gave evidence that [D] did not ring him on that night. The father denied he had seen a medical certificate that was alleged to have been sent from the mother to the father’s solicitors in relation to [D’s] absence from school on this day.
27.The father agreed that he did not attend [D’s] school to collect him at 3.30pm on this day. This is not unusual as the parties’ arrangements were that the children would travel from the school by bus or train to various locations to be picked up.
28.Counsel for the father submitted that the father was entitled in this hearing to explore whether or not [D] was really sick enough to prevent him from going to school this day.
29.The father has established that this day the mother did not make the child available to spend time with the father. That is a breach of the order. The mother has asserted she has a reasonable excuse. She should file her evidence in relation to reasonable excuse on or before 10 February 2016.
Paragraph 22 of my Reasons of 14 December 2015, incorrectly records the charge that the father made in as much as he asserted the breach by the mother was at 3.30pm not 3pm as recorded in [22]. The time alleged in the father’s charge is correctly stated at [27].
MOTHER’S EVIDENCE
The mother relied on an affidavit filed 10 February 2016 and medical records produced under subpoena by the child’s doctors. The mother also tendered in reply a letter from her lawyers to the father’s lawyers dated 16 January 2015. The mother also gave evidence in cross examination.
RELEVANT LEGISLATION
Section 70NAE Family Law Act 1975 (Cth) (“the Act”) sets out the meaning of reasonable excuse for contravening an order.
The mother relies upon two parts of that section. Firstly, the mother relies on s 70NAE(2) of the Act which is in the following terms:
(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.
The mother also relies upon s 70NAE(5) of the Act:
(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).
CREDIT
The mother was an impressive witness. She gave her evidence without any sign of pretence. The mother made two errors in her evidence which she subsequently corrected. Although the mother originally said that 35 degrees was the temperature she thought was normal, in the same breath she corrected that to 37 degrees. The mother initially did not remember that the boys were at their father’s home on the morning of Wednesday 4 February 2015. I accept that the mother had confused which day of the week it was that the boys did not come home and she had the police check on them. When she remembered that was Tuesday 3 February, she readily accepted that the boys left from their father’s home on the Wednesday morning.
EVIDENCE
Exhibit 3 contains unchallenged evidence that on 16 January 2015 the lawyers for the mother wrote to the lawyers for the father asking them to advise as to the current residential address of the father as he had moved from his previous known address. I accept that the mother, as at 5 February 2015, had not received any reply to the request to the father to provide his residential address and on the day of the alleged breach she did not know where he lived.
The mother’s evidence was that on 4 February 2015, when she returned home from work at about 5.30pm, her son D, who was then aged 6, told her that “I feel sick mum”. The mother took D’s temperature orally with a thermometer. The mother said that her understanding was that normal body temperature was 37 degrees Centigrade and that he had a temperature that was in excess of that.
D, who I accept normally has a healthy appetite, showed little interest in his dinner on the evening of 4 February 2015. I accept that the mother as a consequence became concerned. She took D to L Medical Centre at Suburb E and saw Dr K. Exhibit 2 records that the consultation took place shortly after 7pm. The doctor’s history records that the child had been brought to the clinic by his mother and that she gave a history of the child having a runny nose. The doctor recorded that the child’s temperature at that time was 36.4 Tympanic. The doctor recorded that the child was not dehydrated; had no respiratory problem but that he had discharge from his left nostril and discharge from his right nostril. The doctor records that the mother was advised to administer plenty of fluids and Panadol and Demazin to the child and return if there was any concern.
The doctor’s notes are consistent with the mother’s memory of this consultation where she records that the doctor said to her words to the effect of “keep his fluids up and give him Panadol and/or Demazin”.
The mother administered “children’s dosages of Panadol” to D that evening and the following day in accordance with the recommendations contained on the packaging of the product.
On the morning of 5 February 2015, the mother says that D’s condition had not improved. He was exhibiting symptoms of fever, lethargy and was flushed in appearance. The mother’s evidence was that in addition to suffering from the symptoms of a runny nose, D was complaining of a sore throat (the previous evening the doctor had recorded that D’s throat was not red and his tonsils were not enlarged).
The mother formed the view that D was clearly unwell and that he could not attend school that day. The mother took the decision to keep him home from school. As a consequence, the mother emailed her employer to inform them that she would be taking carer’s leave that day and also contacted the school to tell them that D would not be at school.
The mother cared for D during the day. D slept for the majority of the day. It is the mother’s evidence that she took his temperature and it was elevated to a level beyond 37 degrees and that D would not eat and was particularly sleepy after taking Panadol and Demazin.
The mother said D’s condition did not improve up until the early afternoon when the mother took D back to L Medical Centre. The mother said D was examined at the Medical Centre by Dr M. Counsel for the father submitted that the medical notes on 5 February 2015 do not indicate that D’s temperature was taken or that the doctor felt that he had a warm abdomen and the only record is that they attended to obtain a medical certificate. Whilst I accept there is no reference in the notes that D was examined on 5 February, nevertheless I accept the mother’s evidence that Dr M examined D prior to writing the medical certificate which was to the effect that D was unfit to continue his usual occupation on 5 February 2015. The consultation with Dr M is recorded to have taken place at 2.44pm. The doctor records that the certificate was required “for time off school”. The mother gave oral evidence that it was also used by her to establish an entitlement with her employer for carer’s leave. The mother denied that the purpose of obtaining the certificate related to the mother’s intention to keep D with her at a time when he ordinarily would be with his father.
I find the medical certificate was issued on 5 February 2015 after Dr M had examined the child. The mother was not challenged in cross examination in relation to her evidence about what the doctor told her on 5 February 2015. I accept that Dr M said to the mother words to the effect of, “You should keep him at home, keep up his fluids, given him Panadol and Demazin and let him rest”.
The text of the exchange of SMS messages between the parties at around about 4pm on 5 February 2015 is set out in [24] and [25] of the Reasons of 14 December 2015.
The mother says that although D was getting better, when she got home from the doctors after the consultation in the afternoon of 5 February 2015, she gave D some further medication and he became sleepy. The mother says that D was asleep at the time the father sent a text message asking to speak to D. The mother says she thought it was best to allow D to continue to rest and accordingly she did not wake him so that he might telephone his father.
It was put to the mother that she had either totally fabricated or substantially exaggerated D’s medical condition. The father’s submission that she had totally fabricated D’s medical condition was maintained even in the face of the medical evidence outlined above.
The father asked the court to find the mother had fabricated the child’s medical condition because of dramatic events that had taken place on 3 February 2015 leading to a circumstance where C and D went from school to the work place of the father’s partner. Even though the court orders provided for the boys to be with their mother that night, the father retained them. The mother called the police concerned about the boys. The mother did not know where the father lived. The police located him and checked with the father as to the children’s safety. C and D spent the night with their father. The father drove the boys to school on Wednesday morning (4 February 2015). C stayed with his father although D went home to his mother’s home after school on 4 February 2015.
The father submits that the mother’s evidence about D’s temperature should not be accepted because the doctor’s notes indicate that D’s temperature when he was examined a bit after 7pm on 4 February 2015 was slightly lower than the temperature that the mother recorded when she had taken it both before taking D to the doctor on Wednesday 4 February and during the morning of 5 February. I am not prepared to infer that because the doctor’s measurement was a lower temperature that the mother’s evidence in relation to her observations using her home thermometer were inaccurate.
I do not accept that the mother has falsified D’s medical condition on 5 February 2015. I accept the mother’s version of D’s medical condition on 4 and 5 February 2015.
SECTION 70NAE(2)
Counsel for the father submitted that even though the order was not explicit, the order required the mother to do everything to facilitate D’s time with his father as that time is defined in the order. For the purposes of this discussion, I will assume that is a correct interpretation of the order.
The mother submits that the order is ambiguous and she did not understand that it might have meant that she had to attempt to find out where the father was and deliver D to the father on what had become a non-school day because of D’s illness.
The terms of the order is as follows:
4. That the children [which included D] are to spend time with the father as follows:
(b) in the off week during the school term from immediately after school on Thursday until the commencement of school on the Friday morning.
The lawyer for the mother’s first point was that school normally finished at 2.35pm in the afternoon and the father has charged the mother with a breach as at 3.30pm. As I have said in my Reasons in relation to the prima facie case, nothing in my view turns on the precise time in the afternoon when D was to spend time with the father, given that the parties’ arrangements were that the children would travel from the school by bus or train to various locations to be picked up so that they could eventually be with their father that evening.
The more significant submission made by the lawyer for the mother related to the mother’s understanding of her obligations under the order, as there was no school on this Thursday.
On the afternoon of 5 February 2015 B (then aged 15) and C (then aged 12) were with their father at sports training, the father being the coach of their sporting teams. The father, apart from sending the text message as set out above, made no other communication with the mother to offer to pick D up and look after him on this evening.
The mother did not know where she might have delivered D to the father on this evening.
The mother’s evidence was that she did not understand the obligation that the order imposed.
Counsel for the father submitted that it is unlikely that the mother did not understand the orders because she had called the police on 3 February accusing the father of breaching the orders and had utilised assistance of the school headmaster and her lawyers to enforce the orders. This means that she was not naïve about her rights under the orders. The understanding the mother had was that under the orders, the boys were to be with her on the evening of Tuesday 3rd and Wednesday 4th February 2015.
That is different from the issue of what the orders provided in the event of a midweek illness where a child had not been to school. I accept the mother did not understand that there was an obligation under the order given that the order required D to be made available “from immediately after school” in the circumstances where it had not been a school day because of D’s sickness and the mother did not know how to deliver D to the father.
Given the ambiguity in the order, I am satisfied that the mother ought to be excused in respect of the contravention given that misunderstanding by her.
SECTION 70NAE(5)
If I am wrong about that then the mother has an even stronger claim for reasonable excuse arising from s 70NAE(5). I find that the mother on reasonable grounds believed that D’s health gave rise to the necessity of him staying at home with her and away from school on 5 February 2015.
I accept that the mother’s text to the father, fairly interpreted, is a statement to the father that she intended to keep D at her home because he was unwell. I find that looking at all the evidence as a whole and having observed the mother give her evidence, I am satisfied that the mother believed on reasonable grounds that not allowing D to spend time with the father was necessary to protect his health. Further, the mother only retained D for one night. Given that he had been kept home from school all day because he was unwell, it was reasonable for the mother to retain D for that night. The period that D did not spend with his father was not longer than was necessary to protect D’s health. Accordingly, the mother has established reasonable excuse pursuant to s 70NAE(5) of the Act.
CONCLUSION
For these reasons, the mother has established reasonable excuse and the father’s application on the second charge is dismissed.
APPLICATION FOR COSTS
At the conclusion of the proceedings, the mother made an oral application for costs on a party/party basis as agreed or assessed. Counsel for the father indicated that the father opposed any costs order being made. The lawyer for the mother made short submissions based solely on the fact that the father had been wholly unsuccessful in the applications for contravention that he had brought against the mother. Counsel for the father indicated that she was not in a position to obtain instructions to respond to those submissions.
I allowed seven days for written dot point submissions to be made in respect of costs and I gave the lawyer for the wife seven days to reply.
On 23 February 2016 the lawyers for the father provided written submissions (3 pages) with 32 pages of enclosures, including a lengthy affidavit that had been sworn by the father on 10 July 2014.
On 3 March 2016 the lawyers for the mother forwarded submissions in reply, spanning 9 pages (in larger font than the submissions provided by the father).
The father’s application for contravention brought three charges against the mother.
The first charge against the mother was totally misconceived and was not pressed on the first day of the hearing (see [30] of the Reasons of 14 December 2015).
The father did not establish a prima facie case in relation to the first charge (see [4] to [21] of the Reasons of 14 December 2015).
In relation to the second charge, the father instructed his Counsel to:
47.1.Take objections to the mother’s affidavit but every objection was overruled;
47.2.Cross examine the mother extensively in circumstances where the father knew what the objective medical evidence was.
The father had formed the somewhat unusual view that because he had breached the order on the previous evening (particularly in relation to D), the mother was involved in fabricating medical evidence in a tit for tat retaliation. The father did not seem to be able to see past that case theory. He was not able to objectively assess the independent evidence.
Section 117(1) of the Act provides that each party in proceedings shall bear his or her own costs. Section 117(2) however provides that the court may make an order that it considers just and in considering what order, if any, should be made, those matters set out in s 117(2A) of the Act shall be taken into account.
The financial circumstances of each of the parties to the proceedings
The father’s written submissions seeks to rely upon a financial statement filed by the father on 11 July 2014, whilst at the same time informing the court that there have been significant changes in the father’s financial circumstances since that time, given that he has been in stable employment for approximately 12 months.
The father makes certain assertions in submissions that are not supported by any evidence.
The father generally asserts that he has been able to repay significant debt in the last twelve months.
The father was able to afford counsel to prosecute the contravention applications over two days before me.
I infer the father has the capacity to pay any costs order made.
In contrast, the mother is not in paid employment.
Legal aid
Neither party is in receipt of a grant of legal aid.
Conduct of the parties to the proceedings in relation to the proceedings
The father submits that his application arose out of an incident of excessive physical discipline reported to the father by the child C in circumstances of the father having prior knowledge of previous incidents and on the strength of reports corroborated by a principal of the school. The father submits that the court should be satisfied that the affidavit that he swore only three days after the incident arose out of imminent fears held for C’s safety. I am unable to accept that that was the father’s motivation and in any event, as I have already said in the primary judgment, the father called no evidence by way of corroboration at all. The father brought and continued contravention applications in circumstances where he seemed on the face of it to be in contravention of orders himself.
Part of the father’s evidence was CCTV footage from a railway station which the father had an opportunity to view prior to the commencement of the contravention hearing. He chose to assert at the hearing that that footage contained corroboration of what he asserted. I found that it did not.
In the primary judgment I found the father to be a “less than impressive witness” and also to be “disingenuous”.
The father submits that I should take into account in his favour that these charges arise out of alleged contravention of parenting orders and the application is commenced under Part VII of the Act. That is not a weighty consideration in the circumstances of this case.
Were the proceedings necessitated by a failure to comply with orders?
I found that the mother did not fail to comply with orders.
Whether a party to the proceedings has been wholly unsuccessful
The father’s written submissions do not put into issue the primary submission in respect of costs which was made orally by the lawyer for the mother on 19 February, namely, that the father was wholly unsuccessful in his three contravention applications against the mother. This in my view is a consideration of considerable weight, particularly when added to other considerations that are in the mother’s favour.
Whether either party to the proceedings made an offer in writing
No offers of settlement were exchanged in relation to the contravention application.
Such other matters as the court considers relevant
There are no additional considerations that are relevant.
Conclusion in respect of costs
Given the manner in which the father conducted the proceedings and the fact that he was wholly unsuccessful, I consider it just that a costs order be made in respect of the contravention filed on 12 February 2015 on a party/party basis as agreed or assessed.
The lawyer for the mother also made an application for the costs associated with the costs application. The application could have been dealt with without further costs had counsel for the father been prepared to make oral submissions on the day. The fact that counsel for the father sought and obtained leave to proceed on the basis of written submissions has put the mother to further costs and she should be entitled to recover them (given that the father’s opposition to the mother’s costs application was wholly unsuccessful).
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 March 2016.
Associate:
Date: 17.3.16
0
1