Fielding and Doull

[2013] FamCA 971

FAMILY COURT OF AUSTRALIA

FIELDING & DOULL [2013] FamCA 971

FAMILY LAW – ORDERS – CONTRAVENTION – Where the mother contravened the order – Where there is no reasonable excuse.

Family Law Act 1975 (Cth) ss 60B, 65N(2), 70NAE, 70NAF(1), 70NEA, 70NEB.

Childers & Leslie (2008) 39 Fam LR 379.
In the Marriage of Gaunt (1978) 4 Fam LR 305.

APPLICANT: Mr Fielding

RESPONDENT: Ms Doull

FILE NUMBER: BRC 4139 of 2009

DATE DELIVERED: 12 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 22 October 2013

REPRESENTATION

FOR THE APPLICANT:	Mr Fielding in person
FOR THE RESPONDENT:	Ms Doull in person

Orders

IT IS ORDERED THAT

1. The allegation of contravention particularised as occurring on 25 October 2012 is dismissed.

2. The allegation of contravention particularised as occurring on 15 November 2012 is dismissed.

3. The mother, without reasonable excuse, contravened the Order made 30 May 2011 by failing to provide the children to spend time with the father on the weekends commencing Friday 26 October 2012, Friday 9 November 2012 and Friday 23 November 2012.

4. The parenting Orders made by Bell J on 30 May 2011 be varied by adding:

   (a)Subparagraph (g) to paragraph 3 of the Minutes of Consent annexed to Bell J’s Orders so as to provide for the father to have time with the children in addition to the time already provided for in 3(c) – (f):

   (g) From 5.00 pm Friday until 5.00 pm Sunday on three (3) weekends in the first term of 2014 as nominated by the father in writing with such time to occur on weekends other than those on which the children are spending time with the father pursuant to paragraph 3(a) of the Minutes of Consent annexed to the Orders made by Bell J on 30 May 2011;

   with changeovers for this additional time to occur at the Suburb B McDonalds at C Street, Suburb B, Brisbane.

IT IS NOTED THAT

A.The Court determined that the contraventions are in the less serious category.

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. On 30 April 2013 the father filed an Application for Contravention (“the application”)[1] alleging that, on the dates and in the manner particularised, the mother contravened the terms of a parenting order made, by consent, on 30 May 2011 (“the Order”).

   [1]See Division 13A of the Family Law Act 1975 (Cth) (“the Act”) which contains the statutory regime relevant to the application.

2. The Order provides, amongst other things, that the children D, born in 2001, E, born in 2003 and F, born in 2006, (“the children”) spend time and communicate with the father:

   a)each alternate weekend from 4.00 pm Friday until 4:45 pm Sunday;  and

   b)by telephone on Thursday at 7.00 pm with the father to initiate the telephone communication and the mother to ensure that the telephone is available and the children have privacy to talk with the father during the call.

3. The Order also provides that, unless otherwise agreed, the father collect the children from Suburb G McDonald’s at the commencement of their weekend time with him and return them to Suburb H McDonald’s at the conclusion of such time.

4. The specific contraventions contained within the application can conveniently be grouped as follows:

   a)asserted contraventions in respect of weekends commencing on Friday, 26 October 2012, 9 November 2012 and 23 November 2012 – the allegation being that the children did not spend time at all with their father on those weekends;  and

   b)asserted contraventions in relation to telephone communication on 25 October 2012 and 15 November 2012 – the assertion being that, despite calling, the father did not speak with the children on these occasions.

5. It is not in dispute that the children did not spend time with the father on the weekends particularised above. It is not in dispute that the children did not communicate with the father by telephone on 15 November 2012.

6. The circumstances of the telephone call on 25 October 2012 remain in dispute: the father asserts that, whilst the telephone was answered and he could hear the mother in the background asserting a problem with his phone, the children did not speak to him; the mother asserts that the children spoke over the phone but, for whatever reason, the communication was not heard by the father.

7. I accept that it is probable that, on this occasion, there was some difficulty with the telephone. I accept the father’s evidence that the telephone was answered and that he could hear the mother speaking in the background. I am not, however, persuaded that the mother intentionally failed to comply with the Order or made no reasonable attempt to comply with it on this occasion.[2] I dismiss the allegation of contravention relating to the missed telephone call on 25 October 2012.

   [2]          Family Law Act 1975 (Cth) s 70NAC(a).

The weekends

1. The mother admits contravening the Order on each of the three weekends particularised in the application. However, she contends that she had a “reasonable excuse” for contravening the Order on each of these occasions: s 70NAE of the Act. The mother bears the onus of proving that she had a reasonable excuse for the contraventions, the standard of proof being on the balance of probabilities.[3]

   [3] Family Law Act 1975 (Cth) s 70NAF(1).

2. The statutory definition of the term “reasonable excuse” in s 70NAE of the Act is inclusive. Circumstances may be found to amount to “reasonable excuse” notwithstanding they do not fall within the specific provisions of that section. However, whatever excuse is proffered must be reasonable in the context of the intentions of the Act as reflected by the expression, in s 60B of the Act, of the Objects of Part VII of the Act.

3. In Childers & Leslie (2008) 39 Fam LR 379, Warnick J said, at paragraphs 28 and 29:

   Moreover, the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:

   However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

   Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.

4. And further, having referred to s 65N(2) – which relevantly provides that a person must not hinder or prevent a person and child from spending time together in accordance with an order – and the objects of Part VII as set out in s 60B of the Act and the principles underlying the objects as set out in s 60B(2) of the Act, at paragraph 33:

   These objects and principles offer considerable support for the proposition that a parent who is entitled to spend time with a child ought be able to do so in various conditions and circumstances, including care for a child when the child is unwell, unless of course an exception such as that with which s 70NAE(5) deals, applies.

5. The mother asserted that she had a reasonable excuse for failing to provide the children to spend time with the father on each of particularised weekends because she believed, on reasonable grounds, that not allowing them to spend time with the father was necessary to protect their health or safety and the period during which, because of this contravention, they did not spend time with the father was not longer than necessary to protect their health and safety: s 70NAE(5) of the Act.

6. The mother said that she believed that not allowing the children to spend time with the father on the weekends particularised was necessary to protect their safety because the father was, contrary to the terms of the Order, consuming alcohol whilst the children were in his care.

7. In his affidavit[4] filed in support of the application, the father admits that on one occasion at Christmas and on one occasion at the I Town Yacht Club, during the September 2012 school holidays,  he consumed one beer and one glass of red wine during time the children were with him. He said that his partner was present at all times.

   [4]          filed 30 April 2013.

8. The father disagreed with the mother’s suggestion that he consumed alcohol at other times. He said that he did not consider there to be any impact on the children because he did not drink, save on these two occasions, when they were in his care. He admitted erring in drinking on these occasions.

9. I accept the father’s evidence in these respects.

10. During her cross-examination of the father the mother alleged the following about the time the children spent with him during the September 2012 school holiday period:

    a)that he pushed D or hit him;

    b)that he made D stay on the yacht by himself;

    c)that the boys put themselves to bed on the yacht;

    d)that he had been drinking with friends and vomited in front of D.

11. The father denied all these allegations. In concluding that I accept his denials of such behaviour, it is relevant to note that the mother did not refer to any of these matters in any of the emails, in evidence before me, sent by her to the father contemporaneously with her decision not to provide the children in accordance with the terms of the Order.

12. The mother did not file an application alleging contravention by the father of the term in the Order requiring him to refrain from consuming alcohol whilst the children were in his care. She does not depose to specific knowledge of a specific event or occasion on which, prior to her determination not to provide the children in accordance with the terms of the Order, she became aware of such consumption.

13. I consider that, whilst the mother may have had a belief that not allowing the children to spend time with the father on those weekends was necessary to protect the children’s health or safety, such belief was not on reasonable grounds. I also consider that the mother has failed to establish that the time during which the children were not provided to spend time with the father was not longer than necessary to protect their health and safety. I do not accept that the children did not spend time with the father for no longer than was necessary to protect their health and safety. I consider that the mother simply determined that, contrary to the terms of the Order to which she had agreed, the children would spend time with the father only in the manner and at the time and from the changeover location that she dictated.

14. I have arrived at these conclusions having regard to the material relied on by the parties and for the reasons expressed here.

15. As noted above, despite raising, in correspondence dated 19 October 2012, a ‘concern’ about the father’s consumption of alcohol whilst the children were spending time with him – given a term of the Order which required that he refrain from doing so during such time – the mother did not file an application in the Court so that these matters could be ventilated.

16. It is clear from the mother’s correspondence, which followed this initial email, that nothing the father said to her, contemporaneously at the time of the contraventions, could or would satisfy her about the issue of his alcohol consumption and its asserted impact upon the children’s desire to spend time with him – she consistently refused to accept his assurances that the children would never come to harm whilst in his physical care.[5]

    [5]          Father's email dated 22 October 2012.

17. Whatever his assurances might have been, by 25 October 2012, the mother had reached the concluded view that she did not believe him about the non-consumption of alcohol and considered that his “words of assurance” were not “enough” – despite this, other than suggesting the presence of two adults during the time the children were to spend with the father, the mother did not particularise those things which would be necessary to satisfy her – I consider that she failed to do so because there was nothing that could so satisfy her.

18. It is also clear that the mother knew, no later than via email correspondence dated 25 October 2012, that the father’s partner was present and a witness to the time the children spent with him during weekend times. I consider that, once it was known to the mother that another adult would be present during the time the children were to spend with the father, any belief that they might not be safe whilst spending time with him was no longer reasonable.

19. The mother accepted that she had made the same accusations toward the father in 2009 as she currently did: namely that he was consuming alcohol to excess, was neglectful and that the children were at harm in his care. She also accepted that the Orders had been agreed following the preparation of two Family Reports which recommended that, regardless of these matters, the children spend time with the father in the manner prescribed by the Order.

20. Despite saying that the children tell family and friends about matters evidencing a risk whilst in their father’s care, the mother failed to provide any evidence of this. Her own evidence is noteworthy for its absence of particularity.

21. I consider that the mother has failed to discharge the onus of establishing a reasonable excuse for the weekends on which, in contravention of the Order, the children were not provided to spend time with the father. I consider that the mother acted unilaterally in failing to provide the children to the father as the Order required. I also consider that she simply decided that she no longer agreed that the children spend time with him in the manner provided for in the Order and acted to implement this view.

22. I consider that the mother’s actions in failing to provide the children on the weekends as particularised was more consistent with her overall view that it is not in their best interests to spend overnight time with him than representing an action arising out of a genuine belief, based on reasonable grounds, that preventing them from spending time with him was necessary to protect their health or safety. In reaching this conclusion I have had regard to the contents of the email correspondence passing between the parties which clearly demonstrate such view.

23. I am buttressed in this conclusion by a number of additional matters:

    a)the mother’s suggestion,[6] which I consider disingenuous, that, when the father insisted upon implementation of the terms of the Order, he was evidencing a desire not to spend time with the children. It cannot be forgotten that the father’s acquiescence to the mother’s unilateral imposition of a change to the time the children were to spend with him, as conveyed in an email sent 29 November 2012 and subsequently revoked in an email sent 29 December 2012, arose in circumstances where it was made absolutely clear to him by her that if he did not accept her terms she would not provide the children at all. At the time the father sent the first email, the children had not spent time with him since Sunday, 13 October 2013;

    b)the mother’s response to the father after he told her that he did not agree that the children should spend time with him on Sundays only:  the mother responded by ‘acknowledging’ his ‘choice’ not to spend time with the children in the manner and at the time she proposed. Contrary to the mother’s assertion as to the father’s motivation – as outlined in her emails dated 6 January 2013 and 8 January 2013 – I consider that “all” that the father was “interested in” was spending time with the children in accordance with the Orders as agreed between the parents;

    c)whilst relying on a photograph, dated or ‘posted’ in April 2013, of the father at the I Town Yacht Club as evidence of his asserted consumption of alcohol when the children were in his care, the mother made the point, during her evidence, that the father had failed to telephone the children on that very date – clearly a time when they were not in his care.

    [6]          see: Mother’s emails sent 6 January 2013, 8 January 2013.

24. For the reasons expressed, I conclude that, without reasonable excuse, the mother contravened the Order on the weekends particularised in the application.

The telephone call

1. The mother said that she was not sure why the telephone call due to occur on 15 November 2012 had not happened. She said that, if the father had communicated with her, she was confident that the parties could have worked out an outcome. Given the tenor of the emails referred to above, I do not share this confidence.

2. However, given the father’s evidence that, on other occasions he had ‘missed’ telephone calls with the children – some of which he rescheduled and some of which he did not – I am not persuaded that the mother intentionally failed to comply with the Order or made no reasonable attempt to comply with it on this occasion.[7] I dismiss the allegation of contravention relating to the missed telephone call on 15 November 2012.

   [7]          Family Law Act 1975 (Cth) s 70NAC(a).

The consequence of the findings outlined above

1. Subdivision E of Division 13A of Part VII of the Act applies in the present case: s 70NEA of the Act.

2. From about four months before the hearing, the children have spent day time on each Saturday and Sunday of each alternate weekend in the father’s care. His partner has been in attendance. 

3. I am not persuaded by the mother’s request that I order the suspension of the overnight time provided for in the Order so as to provide her with an opportunity to ‘change’ the time the children are to spend with him pursuant to its terms. I record that that the order made by Registrar Stoneham on 16 August 2013 includes a Notation that “the mother should consider filing any initiating application seeking to change the Consent Order.”

4. I have determined that there should be a compensatory time order[8] in respect of the time the children did not spend with the father as a result of these contraventions: s 70NEB(1)(b) of the Act. I reject the mother’s submission that such compensatory time should be limited simply to the ‘overnight’ period of time which was missed.[9] I am not satisfied that it would not be in the children’s best interest that such an order is made: s 70NEB(5) of the Act.

   [8]          an order which must take into account the children’s best interests

   [9]The mother submitted that, if the Court determined that the children should spend overnight time with the father, her parents would do changeovers at J Town on Saturday afternoons and Sunday mornings on a fortnightly basis.: in essence, any make up time  should be restricted to time commencing at 4.00 pm on Saturday (when the children were returned to her by the father during the imposition of the unilaterally determined time arrangements) and ending at 9.00 am on Sunday morning such that  the only time made up is the  actual “overnight” time.

1. I arrive at these conclusions for the following reasons:

   a)the mother’s evidence is that the children are comfortable with her unilaterally imposed day time visits with the father – this is at odds with her submission that the father has ‘tortured’ the children;

   b)the mother said that, whilst she would not accept the father’s assurances that he would not drink during the time the children are with him, she would be reassured if  other people – including the father’s partner – were ‘around’;

   c)the father’s daytime time with the children has been proceeding in the presence of his partner;

   d)whilst the mother maintained that the children would be at risk if they spent overnight time with the father, I am not persuaded on the evidence before me that this is the case;

   e)the father’s partner is as likely to be ‘around’ at night when the children are spending time with the father as she is when they are spending time with him during the day;

   f)there is nothing in the evidence before me to suggest that there is a greater risk to the children that the father may consume alcohol at night than there is that he may consume alcohol during the day – if, as I infer is the mother’s case, he is so unable to refrain from the consumption of alcohol when the children are with him as to pose a risk to them, it is unlikely that he would be able to refrain from drinking alcohol at any particular time of the day.

2. Whilst the mother submitted that she does not see how she can continue to comply with the Order if it includes a requirement that the children spend overnight time with the father, I reiterate that she agreed to the terms of the Order. I also reiterate that the presence of the father’s partner addresses any asserted risk to the children.

3. It is not open to the mother simply to determine not to comply with the terms of the Order because she has now decided that she does not think it to be in the children’s best interests. The evidence clearly establishes that the mother has unilaterally imposed changes to the place for changeover, the days upon which the children spend time with the father and the frequency of such time. It is not open to her to unilaterally act in such a manner.

4. Following the first weekend on which she contravened the Order, the mother’s proposals for the time the children spend with the father:

   a)started with time each Saturday and Sunday;

   b)reduced to each Sunday; and then

   c)further reduced to each alternate Sunday.

5. The consequence was that the children’s agreed alternate weekend time was, for a time, replaced with time each alternate Sunday – this clearly represents a very significant reduction in the opportunity afforded to the children to develop and maintain a meaningful relationship with the father.

6. A further consequence of the mother’s contravention of the Orders has been that the father has undertaken the return trip to Suburb G on a number of occasions so as to be available to collect the children at the agreed changeover location. Given this, I consider it appropriate that the mother undertake all of the travel associated with the children spending time with the father on the compensatory weekends I have ordered. I do not accept the mother’s submission that the Order should be varied so that all changeovers occur at Suburb G. The order I make will result in no additional impact on the children who must undertake such travel in any event.

7. The father should not, in any way, take from my acceptance of his evidence about his past error of judgement in consuming alcohol while the children were in his care, any imprimatur that, in the future, he can, without impunity, repeat  such an error. I accept his assurance that it will not happen again. He can be left in no doubt whatsoever about the mother’s likely response should he, on any future occasion, commit the same error of judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 December 2013.

Associate:     

Date:              12 December 2013