Fielding and Doull

[2016] FamCA 384

FAMILY COURT OF AUSTRALIA

FIELDING & DOULL [2016] FamCA 384

FAMILY LAW – CHILDREN – CONTRAVENTION – where it is alleged the mother has failed to comply with Orders providing for the children’s time with their father and the exercise of shared parental responsibility – where the allegation of contravention is proved on two counts – where on the third count the mother made a reasonable attempt to comply with the orders of the court – findings of contravention – where the parties will be provided a further opportunity to make submissions as to sanction.

Family Law Act 1975 (Cth)

Childers and Leslie (2008) FLC 93-356

Dobbs & Brayson (2007) FLC 93-346
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Mr Fielding

RESPONDENT: Ms Doull

FILE NUMBER: BRC 4139 of 2009

DATE DELIVERED: 23 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 May 2016

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

1. The Court finds that the respondent mother contravened paragraph 3(f) of the Order made 30 May 2011 without reasonable excuse by failing to fulfil her obligations to cause the children to spend time with the applicant father commencing 20 December 2014 for holiday time.

2. The Court finds that the respondent mother contravened paragraph 1 of the Order made 30 May 2011 without reasonable excuse by failing to consult the applicant father and make a genuine attempt to come to a joint decision before changing the school of the child F born … 2006.

3. The alleged contravention particularised as occurring on 30 January 2015 is dismissed.

4. The Application filed 7 September 2015 and the Amended Application filed 15 April 2016 are otherwise dismissed.

5. The matter is adjourned to 13 June 2016 at 2.15 pm for submissions on an appropriate sanction or further order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fielding & Doull 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 BRISBANE

FILE NUMBER: BRC 4139  of 2009

Mr Fielding

Applicant

And

Ms Doull

Respondent

REASONS FOR JUDGMENT

1. The parties to this dispute are Mr Fielding (“the father”) and Ms Doull (“the mother”). It is the father’s application for sanctions to be imposed on the mother for contravening a parenting Order made on 30 May 2011 (“the parenting Order”).

2. On 12 December 2013, Hogan J found that the mother had contravened the parenting Order without reasonable excuse and varied the parenting Order to provide for the father to spend time with the children on additional specified dates. This history is relevant when considering the requisite standard of proof (see s 70NAF(3) of the Family Law Act1975 (Cth)(“the Act”)) and when considering an appropriate sanction or further Order.

3. Neither the father nor mother had legal representation.

Brief Background

1. The father and mother were in a relationship from June 2001 to 31 December 2008. They were not married. They have three children together, namely, D born in 2001, E born in 2003 and F born in 2006. The children live with the mother and pursuant to the parenting Order are to spend time with the father each alternate weekend and for half holidays and on special days. The children have not spent any time with their father pursuant to the parenting Order since a time prior to January 2015.

2. The father commenced these proceedings by Application - Contravention filed 7 September 2015. On 8 March 2016 he was granted leave by Registrar Stoneham to file an Amended Contravention Application and was also granted leave to effect service upon the mother by ordinary post at her address for service being c/- K Street, Suburb L.

3. The mother conceded that she had been served with the Applications and affidavits.

Contravention application

1. At the commencement of the hearing the father sought leave to further amend his Application – Contravention to rely on only three counts of alleged contravention rather than the numerous counts listed in his Application. The mother consented to the proposed amendments.

2. Section 97(3) of the Act provides that the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted. Rule 1.04 of the Family Law Rules 2004 (“the Rules”) provides that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances. Rule 1.12 of the Rules provides that the court may dispense with compliance with any of these Rules at a time, before or after the occasion for compliance arises. Rule 11.10 permits amendment after prescribed times by order or with the consent of the parties.

3. Two of the three counts pursued by the father were contained in the Application filed 7 September 2015 at paragraph 7, namely the contravention alleged to have occurred on 20 December 2014 and the contravention alleged to have occurred on 30 January 2015 and the remaining count was contained in paragraph 9 of the Amended Application filed 15 April 2016.

4. Accordingly, leave was granted to further amend the Application to rely upon only three counts and to further particularise them.

5. The three counts are as follows:

   a)One – On 20 December 2014 the mother contravened subparagraph 3(f) of the Order made on 30 May 2011 without reasonable excuse by failing to facilitate the children spending holiday time with the father.

   b)Two – The mother contravened paragraph 1 of the Order made on 30 May 2011 without reasonable excuse by failing to consult with the father and make a genuine attempt to come to a joint decision about the change of school for the child, F.

   c)Three – The mother contravened paragraph 3(a) of the Order made on 30 May 2011 without reasonable excuse by failing to facilitate the children spending weekend time with the father.

6. The remaining counts contained in the Applications were dismissed by consent.

7. The father relied upon the following material in support of his Application: 

   a)Application for Contravention filed 7 September 2015 and Amended Application filed 15 April 2016 as further amended by leave on 16 May 2016;

   b)Affidavit by Mr Fielding filed 7 September 2015 (the smaller of the two) but only paragraphs 20 (including annexure “E”), 21 – 25 (including annexure “F” and “G”) and annexures “H”, “I” and “N” (in relation to count one);

   c)Affidavit by Mr Fielding filed 15 April 2016 (the larger one) but only page 12 paragraph 8 (in relation to count two);

   d)Affidavit of Mr Fielding filed 15 April 2016 (the thinner one) but only paragraph 76 to 85;

   e)Order 12 December 2013;

   f)Order 30 May 2011; and

   g)Order 8 March 2016.

8. The mother denied that she had contravened the parenting Order, within the meaning of the Act, as alleged in counts one and three and did not rely upon establishing a reasonable excuse. The mother admitted that she had contravened the parenting Order as alleged in count two but submitted she had a reasonable excuse.

9. The father was cross-examined and annexure “F” to the father’s affidavit filed 7 September 2015 (being a video recording taken by the father on 20 December 2014) was played in court.

10. Having found a prima facie case of contravention on the three counts the mother sought leave to read and file an affidavit sworn by her on 16 May 2016 but only page 9 paragraph 1, page 10 paragraph 3 and annexures 1 and 5.

11. The mother was granted leave to adduce further oral evidence in chief and was cross-examined.

Determining an application for contravention

1. An Application - Contravention relating to an alleged contravention of a parenting Order is governed by Part VII Division 13A of the Act. There are three distinct questions to consider in determining such an Application:

   a)Has an Order been contravened within the meaning of s70NAC;

   b)Does the respondent have a reasonable excuse within the meaning of s70NAE; and

   c)What sanction or other Order should be made, if any (Subdivisions B, C, D, E or F).

2. The mother will only be found to have contravened an Order if she has:

   a)Intentionally failed to comply with the Order; or

   b)Made no reasonable attempt to comply with the Order. (s70NAC)

3. Subject to the type of sanction imposed the onus of proof rests upon the father to establish that the mother has contravened the Order on the civil standard viz on the balance of probabilities (s70NAF(1)).

4. If it is found that the mother has contravened the Order then the mother must establish that she had a reasonable excuse on the balance of probabilities (s70NAE, s70NAF(2))

5. Pursuant to s70NAF(3) if an order is to be made under subparagraphs 70NEB(1)(da) (fine for failure to enter into bond) or 70NECA(3)(a) (fine for failure to comply with a bond) or 70NFB(2)(a), (d) or (e) (community service order, fine or imprisonment) or 70NFF(3)(a) (fine for failure to comply with community service order or bond) then the court must be satisfied beyond reasonable doubt that the grounds for making the order exist. Only 70NFB(2)(a), (d) or (e) have potential relevance in this case.

6. In Dobbs & Brayson (2007) FLC 93-346 the Full Court observed the ‘oddity’ of subsection 70NAF(3) but held:

   51. … [B]efore an order of the type referred to in that subsection is made, the court must be satisfied beyond reasonable doubt of all the factual matters that relate to the finding of contravention, to the treatment of the contravention as one to which Subdivision F of Division 13A applies, and, subject to what we next say, if imprisonment is imposed, the inappropriateness of other available orders.

   …

   62. …We have already concluded that the terms of s 70NAF of the Act mean that all the facts which the applicant must establish before an order of the type referred to in s 70NAF(3) can be made, must be proved beyond reasonable doubt. Cases where other facts are relevant to the particular order made may well be rare. However, in our view, even in respect of those facts, if adverse to the respondent, they must be proved beyond reasonable doubt.

   [emphasis in original]

7. As to what is required of a ‘live with’ parent to comply with a ‘spend time with’ order it is apposite to refer to the Full Court’s decision in Stevenson v Hughes (1993) FLC 92-363 and in particular to the quotation cited with approval from the trial judge’s reasons in the judgment of Fogarty J at 79,815-816:

   “There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.”

   …

   I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian'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.

   Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it 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 custodian of compliance with the obligation.”

   …

   “... the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order.”

   It is important that in cases of this sort custodians appreciate that they are 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. That matter was emphasised as early as 1984 in Stavros and Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.

   (see also Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 at [35])

8. The Full Court in Childers and Leslie (2008) FLC 93-356 considered what was involved in determining whether a respondent had a reasonable excuse for not complying with an order and held at [28]:

   …The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother's actions were excusable.

   …

   Such an order places serious obligations on persons in the position of the mother in this case.

9. The Full Court further held that in determining such an issue it was relevant to consider other sections of the Act, in particular: (at [30] – [32])

   Section 65N in relevant part provides that:

   (2) A person must not:

   (a) hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b) interfere with a person and a child benefiting from spending time with each other under the order.

   The objects of Part VII of the Act set out in s 60B include:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

   …

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   The principles underlying the objects are set out in s 60B(2) and include:

   (a) that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;

10. That s 65N also has relevance when considering whether a respondent has failed to make a reasonable attempt to comply with an order is apparent from s 70NAD which provides that a parenting order that deals with whom a child is to spend time is taken to include a requirement that people act in accordance with s 65N in relation to the order.

11. In In the Marriage of Gaunt (1978) FLC 90-468 the Full Court considered the nature of the enquiry relating to whether a respondent has a reasonable excuse and held at 77,398:

    The essential question is this – can a party who does not agree with a Court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

    … A party's subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”…

12. So, in determining whether the mother has contravened a parenting order on the facts of the present case, I firstly need to consider what attempt she made to comply with the order in respect to the three counts. If I am satisfied that she made a reasonable attempt to comply that will be the end of the matter. If I am not satisfied that she has made a reasonable attempt to comply then I will consider whether she has a reasonable excuse (although she did not seek to rely on a defence of reasonable excuse in relation to counts one and three). If I find that she does not have a reasonable excuse I will consider what sanction or other order I should make, if any. If I consider that an order referred to in s 70NAF(3) should be imposed I need to be satisfied beyond reasonable doubt that the grounds for the making the order exist.

The relevant paragraphs of the parenting Order

1. Paragraph 1 of the parenting Order provides as follows:

   That both parents have equal shared parental responsibility for the children [D] born … 2001, [E] born … 2003 and [F] born … 2006 (“the children”).

2. Paragraph 3 of the parenting Order provides as follows:

   That the Father spend time and communicate with the children at all times as agreed between the parties but failing agreement:

   (a)On each alternate weekend from 4:00pm Friday until 4:45pm Sunday;

   …

   (d)      During the school holidays…

   i.         [D] and [E] to spend the second half of the school holiday periods in Easter, June/July and September/October and for 2 (two) periods of 10 (ten) days in the Christmas school holiday period;

   …

   (f)       During school holidays in 2014 and for each following year [D], [E] and [F] to spend time with their Father in accordance with the time provide for in 3(d)(i) above.

Count one

1. It is not in dispute that the children were to spend time with the father commencing on 20 December 2014 and that they did not spend time with him.

The father’s evidence

1. The father attended McDonalds restaurant at 9:20am on 20 December 2014. At approximately 9:30am he observed the mother drive out of the ‘drive through’ of McDonalds with all three children in the car right beside him and continue driving out of McDonalds altogether. The mother remained parked on the street outside McDonalds although there were parking spaces in the McDonalds car park. Annexure “F” confirms this to be the case. He contends that they had parked close by each other on many occasions in the past in order to facilitate the movement of equipment and the like between cars and that the mother had never before parked out on the road. The mother remained on the street outside McDonalds for between two and four minutes before driving off. None of the children made any attempt to leave their mother’s car. The father denied any history of family violence by him and contended that while there is, and have been, protection orders made in the past they have been made in circumstances where he either consented without admission or failed to attend court. He contends that he appealed against the granting of one protection order and when his appeal was heard by Judge McGill in the District Court his appeal was successful. 

2. Some minutes after the father saw the mother drive off he received text messages from an unknown number and the following exchange with the father occurred:

   To the father: Hey dad we dont want to come with u these holidys at all

   Court orders text or email only

   From the father: I’m sorry you all feel that way but the court orders say you must. It’s the law. We have a great Christmas planned with your family here. Please come back I am still here waiting. We will have fun.

   To the father: Dad we dont c u again leave us alone.

   From the father: Why

   I love you kids and I really really miss you. We all miss you. Happy Christmas

   How about you call me [D] and have a talk about it son. Or get [E] or [F] to call me if you don’t feel like it?

   (errors and omissions in original)

The mother’s evidence

1. The mother does not dispute the father’s evidence to any great extent but contends that she had made a reasonable attempt to comply with the parenting Order by driving for 45 minutes to attend the changeover and telling the children to go with the father. She contends that the reason she did not park in the McDonalds car park was because of the history of the father’s aggressive behaviour. The father denied same. Initially the mother put to the father in cross-examination that the car park was full but changed her version when confronted with annexure “F” in which it was clear that there were car park spaces in the McDonalds car park. She contends that she encouraged the children to go to the father but when the children refused to go with their father she told them they would need to text their father and tell him. Importantly the mother said:

   The choice not to go was their choice

1. I find that the mother did not comply with the obligations imposed upon her by paragraph 3(f) of the parenting Order. While she did drive to changeover she stayed for only about four minutes and made no attempt to get out of the car or cause the children to get out of the car. I find that the mother left it up to the children whether to go with their father or not. Accordingly, I find beyond reasonable doubt that the mother made no reasonable attempt to comply with the parenting Order and accordingly find that the mother has contravened the parenting Order.

2. Although the mother did not rely upon having a reasonable excuse I have nevertheless considered whether the facts relied upon her would fall within the definition set out in s70NAE. I find beyond reasonable doubt that the mother had no reasonable excuse for contravening the parenting Order.

Count two

1. There is no dispute that the parenting Order was contravened but the mother contends that she had a reasonable excuse because:

   a)F had been at M School from prep to grade 4 and had no friends;

   b)The mother’s circumstances changed in that she obtained a new job;

   c)She moved F without thinking of consulting the father;

   d)She moved F to a school closer to home which saved about 20 minutes in travel time each day;

   e)She apologised to the father;

   f)She was the only one impacted by the move as she does the pick up and delivery to and from the school;

   g)The new school was also a State School also at the south end of Region N.

2. The father did not find out that F had changed school until he called the school and was so advised. While the mother claimed to have apologised, as became clear in cross-examination, no such apology had been proffered at any time to the father. She was merely referring to her evidence in chief. Not that an apology would have excused her from compliance with the Order.

3. During her submissions in relation to this count the mother submitted:

   It just slipped my mind about the school and I am sorry

4. There is no factual basis upon which I could find that the mother had a reasonable excuse for contravening the parenting Order as alleged.

5. Accordingly, I find beyond reasonable doubt that the mother has contravened count two without reasonable excuse.

Count three

1. It is not in dispute that the children were to spend time with the father commencing 30 January 2015 and did not.

The father’s evidence

1. The father attended at McDonalds for changeover on 30 January 2015. F and E got out of their mother’s car and got into his car. D did not get out of his mother’s car. The father tried to persuade D to come with him but he would not. As he was stationary at the traffic lights F and E said to the father that their mother had made other arrangements and they did not want to come with him. He replied with words to the effect ‘well you had better go with your mother then.’ F proceeded to jump out of the window of his vehicle as the door was broken and E got out of the door. Both children went to the mother’s vehicle, which was parked in front of the father’s car at the traffic lights and got in. The mother then drove off.

The mother’s evidence

1. The mother contends that she encouraged all three children to go with their father on this occasion telling them they would have fun and the youngest two did get out of her car and went to the father but the eldest child refused to get out of her car. She contends that that the father then parked her in and started to yell at the oldest child asking him why he would not come with him. She contends the child was upset so she left via a different exit. She contends she did all she could to facilitate the time. When she was waiting at the traffic lights the two younger children suddenly got back into her car. She describes them as hysterical saying they never wanted to go to their father again. She contends that she flagged down a police car and the children talked to the police. She contends that she was advised by them to apply for another protection order.

2. The mother relies upon a transcript of proceedings at annexure 5 to her affidavit relating to her application for a protection order, which was heard by Magistrate Magee in the Magistrates Court at O Town in 2015. While the father had filed material in response he did not attend the hearing. In support of her application I note that the mother sought to rely upon a letter allegedly written by the child D to the father on 24 November 2014 which stated inter alia:

   Hey dad, we’re not coming with you because we’re sick of your fucking shit.

3. While declining to receive the letter of the child into evidence Magistrate Magee found it most inappropriate that the mother would appear to be encouraging her child to speak to the father in that manner.

4. The mother, to support her application for a protection order, relied upon the changeover on 30 January 2015. Her evidence at that hearing was summarised by the Magistrate as follows:

   There is an allegation that the respondent [father] yelled at the eldest child, questioning why he didn’t wish to go with him and questioned him aggressively and that this caused the child distress, that, subsequently, the two children who did travel with him subsequently, at a red traffic light, exited the respondent’s vehicle and got in the car with their mother, stating that they did not wish to go with their father and that his anger and questioning of them had scared them. The aggrieved then phoned triple zero.

5. The Magistrate lamented the fact that the father did not attend the hearing but referred to his affidavit in which he gave an account along the lines referred to at this hearing.

6. The Magistrate made the following comment:

   I am concerned at the allegation about bullying of the children in relation to changeover. I am concerned that his conduct, on this occasion, does amount to domestic violence, behaving in an intimidatory (sic) fashion toward the aggrieved and the children.

7. It was on the basis of that concern that a protection order was made which is stated to be in place until 4 July 2020 according to annexure 1 to the mother’s affidavit. The children are named as persons protected. I note that contrary to s 97 of the Domestic and Family Violence Protection Act 2012 (Qld) no special reasons were provided for extending the Order for longer than two years. Annexure 5 indicates that the Magistrate only intended the protection order to remain in place until 2017.

8. On the occasion of the changeover on 30 January 2015 I find that the mother made a reasonable attempt to comply with the parenting Order. I accept that she told the children that they should go with the father and that they would have fun. It is common ground that the younger two children then got out of their mother’s car and went to their father’s car. The children left the father’s car as a result of him telling them to do so.

9. I therefore find that count three is not proved.

summary

1. I find the mother has contravened the parenting order on two of the three occasions alleged without reasonable excuse.

2. I will list the matter for submissions on an appropriate sanction to impose.

3. I note that the father is seeking that the parenting order be varied (although how he proposes it be varied in not addressed), that the mother be ordered to attend a program designed to assist her with her parenting obligations, compensatory time, compensation for travel costs incurred by him in relation to his attempts to see his children and for the imposition of a suspended term of imprisonment.

4. At the hearing of the father’s Application on 16 May 2016 I made an Order that the parties and children attend upon a family consultant pursuant to s 11F of the Act. I propose to consider the evidence from the family consultant and hear further submissions from the parties as to an appropriate sanction or other Order, if any, prior to making that determination.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 May 2016.

Associate: 

Date:  23 May 2016