Finch and Harris (No.2)

[2016] FCCA 1839

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & HARRIS (No.2) [2016] FCCA 1839

Catchwords:
FAMILY LAW – Children – Contravention – Contravention of Parenting Orders – reasonable excuse – whether reasonable excuse for contravention – order compensating father for lost time.

Legislation:

Family Law Act 1975, ss.70NAC,70NAE, 70NAF, 70NDA, 70NDB, 70NEA, 70NEB, 70NEC

Federal Circuit Court Rules 2001 r. 25B.04

Cases cited:

Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112
Finch & Harris [2016] FCCA 1485
Ramsay & Wade [2014] FCCA 1431
Ramsay & Wade (No.2) [2014] FCCA 1989
Ramsay & Wade (No.4) [2014] FCCA 2333

Applicant: MR FINCH

Respondent: MS HARRIS

File Number: SYC 7893 of 2011

Judgment of: Judge Scarlett

Hearing dates: 11 & 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

Applicant: In person (by telephone)

Respondent: In person

ORDERS

1. Count Number 1 of the Application – Contravention filed on 6 July 2016 is dismissed.

2. The Respondent Mother did on 1 July 2016 contravene Order (6)(c)   made on 14 June 2016 in that she failed to make the child X born (omitted) 2003 available to travel from Sydney to Adelaide to spend time with the Applicant Father for the purpose of the mid-year school holidays.

3. The Respondent Mother has established a reasonable excuse for the above contravention.

4. By way of compensating the Applicant Father for the time lost in respect of the above contravention in accordance with section 70NDB of the Family Law Act 1975 the child X born (omitted) 2003 is to spend time with the Father for the entire school holiday period at the end of the third school term in 2016 from Saturday 24 September 2016 to Sunday 9 October 2016.

5. For the purposes of the immediately preceding Order:

   (a)The child is to travel between Sydney and Adelaide by regular scheduled airline service as an unaccompanied minor;

   (b)The parties are to pay the child’s return airfares in equal shares;

   (c)The Mother will be responsible for transporting the child to and from Sydney Airport and the Father will be responsible for transporting the child to and from Adelaide Airport;

   (d)The child is to be booked to travel from Sydney to Adelaide on the first available flight scheduled to leave Sydney on Saturday 24 September 2016;

   (e)The child is to be booked to travel from Adelaide to Sydney on a flight leaving Adelaide and scheduled to arrive in Sydney no later than 6:00 pm on Sunday 9 October 2016;

   (f)The Father is to make the child’s flight bookings at least fourteen (14) days prior to Saturday 24 September 2016.

   (g)In the event that the child misses his flight or the flight is cancelled or the departure time of the flight is delayed by twenty (20) minutes or more then the parent responsible for arranging for the child to board the flight must inform the other parent by text message of the changes to the child’s flight details.

6. To avoid confusion Order (6)(d) made on 14 June 2016 is suspended between 23 September 2016 and 10 October 2016.

7. No order for costs.  

IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7893 of 2011

MR FINCH

Applicant

And

MS HARRIS

Respondent

REASONS FOR JUDGMENT

Application-Contravention

1. This is an Application by the Father against the Mother for contravention of the Orders made by this Court on 17^th June 2016. The orders said to have been contravened are Order (2) and Orders 6(c) and 7(b). 

2. Order 2 provides that:

   The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2003 in respect of all matters concerning the long term care, welfare and development of the said child EXCEPT THAT the Father is to have sole parental responsibility to make decisions about any elective surgery or orthodontic treatment for the child after appropriate consultation with the Mother.

3. Order 6(c) provides that:

   The child X is to spend time with the Father as follows:

   c) for the mid-year school holidays from 9:00 am on the day immediately after the last day of the school term until 5:00 pm on the day before children are required to attend school at the commencement of the third school term.

4. Order 7(b) provides that:

   For the purposes of the immediately preceding Order:

   b) the parties are to pay the child’s return airfares in equal shares.

Background

1. What happened was that the child was to travel to Adelaide to spend time with the Father for the school holiday period. The Father had arranged for the child to undergo surgery whilst he was in Adelaide.  An order had been made that the Father was to have the sole parental responsibility to make decisions about any elective surgery or orthodontic treatment for the child after appropriate consultation with the mother[1].  The child was due to arrive in Adelaide on the Father’s affidavit on 30^th June.

   [1] Order (2)

2. The Father deposed in his affidavit about negotiations with the Mother, and there was a difference of opinion as to the details of the flight upon which the child was to travel.  A series of messages passed between the parents and the thrust of those messages was that there was a difference between them as to which day the child was to travel.  The Father noted at paragraph [53] of his affidavit that on 30^th June at 1:10pm by email the Respondent wrote to him and said:

   Please refer to the court orders June 2016 and the direction from Magistrate[2] Scarlett that you amend your flight bookings to comply with those orders.  Therefore, you are required to amend tomorrow’s booking and X’s return booking.  I am potentially willing to compromise on Friday’s booking, however, X won’t be travelling to Adelaide unless you amend his flight home and advise me prior to tomorrow.[3]

   [2] (!)

   [3] Affidavit of Mr Finch 5.7.2016 at [53]

3. The Father deposed at paragraph [56] of his affidavit:

   I advised that I expected the judge did not anticipate, nor would any reasonable person anticipate, that with such short notice the respondent would make unreasonable and unfair demands and threaten me with the holding onto of our son so soon after the making of the orders.  I reiterated that I advised in my earlier communication the booking entry.  I will send the remaining booked flights in the near future as putting these together required reasonable time to do so given I was working intensely to prepare to take the week off 8 to 15 July without income to support the child through his surgery and surgical recovery.[4]

   [4] Affidavit of  Mr Finch 5.7.2016 at [56]

4. The Father went on to depose at paragraph [65] of his affidavit:

   On 30 June, the respondent emailed me to advise she was holding the child for the entire school holiday period in July.  She claimed there was a $69 flight I could have booked for the child’s return trip from Adelaide to Sydney on the 18^th of July, however, I checked Qantas, Virgin and Jetstar, the only airlines the child has ever flown with and none of them had such a flight.[5]

   [5] Ibid at [65]

5. What transpired was that the child did not travel to Adelaide and the Father filed a Contravention Application and an affidavit in support at the Adelaide Registry on 6^th July 2016.  He sought that the matter be dealt with ex parte.  A Judge at that Registry, His Honour Judge Heffernan, noted that the Mother and the child both resided in Sydney and that the orders had been made by me at the Sydney Registry. His Honour took the view that the Sydney Registry was the more appropriate forum to hear the Application.

The Hearing of the Application

1. The Application was in fact listed in the Sydney Registry on Monday 11^th July.  The Father attended by telephone from Adelaide having been given leave to do so. The Mother attended in person. What then happened is that I heard submissions from each party and took the view that the Applicant had not made out a case in respect of the claimed contravention of Order 2, which is the Order that effectively allocated parental responsibility.  However, I did take the view that the second Count had been made out, which alleged that:

   The respondent, without reasonable excuse, refused to allow the child to travel to Adelaide by a booked and paid for flight she had been notified of in writing 19 March, 17 April and 28 June 2016.  The respondent, by unreasonably holding the child, has ensured he will miss his necessary booked surgery of 8 July 2016 of which she has delayed and/or sabotaged for several years and was notified of in writing at 12 and 14 February and 15 February 2016 and consented to at 15 February 2016 in writing.

2. I have taken the view that this Count, notwithstanding it alleges a contravention of two Orders, has been made out in respect of Order number 6. 

3. Order 6(c) is the order that provided the midyear school holidays from 9:00am on the day immediately after the last day of the school term until 5:00pm on the day before children are required to attend school at the commencement of the third school term the child will spend time with the Father.  Order 7(b) is an order relating to the parties paying the child’s return airfare.

4. What particularly concerned the Court on Monday 11^th July was that the child still had not travelled to Adelaide even though there had been a controversy between the parents as to which of two flights over to Adelaide was the appropriate one.  The thrust of the order was that the child should spend the holidays in Adelaide and accordingly the Father had made arrangement for the child to have some elective surgery take place on 8^th July.  That did not happen because the child was not in Adelaide.

5. When the matter came before the Court on 11^th July the child was in Sydney.  He had travelled to Victoria with his mother and the Mother’s children from another relationship in the intervening time because he had not gone to Adelaide. 

6. I stood the matter down in the list and directed the parties to ascertain the time of the next available flight for the child to travel to Adelaide to spend the balance of the school holiday time with his father. The Father was particularly concerned that the child was not with him and he noted that in fact that very day was the Father’s birthday and the Father submitted that both he and the child wished to spend the Father’s birthday together.

7. Arrangements were made for the child to take a flight from Sydney to Adelaide late that afternoon, so that he would arrive in Adelaide early in the evening and would still be in Adelaide that day and could spend the rest of the time, the school holiday time, with the Father in accordance with the spirit of the orders.  The concern that I had was that despite the controversy between the parents over the exact time and day that the child was to fly, that by the time the matter had come to Court on 11^th July, the child had still not travelled to Adelaide. 

8. I was satisfied that no reasonable attempt had been made to comply with the Court order.  I directed that the Mother should file and serve an affidavit in which she should set out what, if any, reasonable excuse she had for the contravention.

The Law and Procedure in Contravention Applications

1. As far as the law and procedure in contravention applications is concerned, the meaning of the word “contravened” in the sense of contravening a court order is defined in section 70NAC of the Family Law Act 1975 (Cth), which says, relevantly:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)  where the person is bound by the order--he or she has:

   (i)  intentionally failed to comply with the order; or

   (ii)  made no reasonable attempt to comply with the order.

2. The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities, see subsection 70NAF(1). If the Court is satisfied that a person has contravened an order, that person may still establish that he or she had a reasonable excuse for the contravention, subsection 70NEA(1)(c).  Again, the standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities, subsection 70NAF(2).  The procedure at the hearing of such an application is set out in Rule 25B.04:

3. At the hearing of the application, the Court must:

   (a)    inform the respondent of the allegation; and

   (b)ask the respondent whether the respondent wishes to admit or deny the allegation; and

   (c)hear any evidence supporting the allegation; and

   (d) ask the respondent to state the response to the allegation; and

   (e)determine the proceeding.

4. It is important for a Court to follow this procedure and inadvisable to depart from it, especially where one or both of the parties is not legally represented.  This issue has recently been discussed by the Full Court of the Family Court in Caballes & Tallant[6], where Strickland J held at paragraph 17:

   …applications such as these are common, and given their quasi-criminal nature, I consider it important that the process in hearing and determining them be applied appropriately and transparently, and particularly where neither party has legal representation. Shortcuts should not be taken, and where orders are alleged to be contravened within the meaning of s 70NAC of the Act, that needs to be addressed by affording each party procedural fairness.

   [6] (2014) FLC 93-596; [2104] FamCAFC 112

5. It is for that reason that I elected to adjourn the proceedings until 15^th July to allow the Respondent, who is not represented, to provide an affidavit setting out the circumstances which, she asserts, give rise to a reasonable excuse. 

6. Now, as for the meaning of reasonable excuse for contravening an order, section 70NAE of the Family Law Act 1975 provides a guide to the meaning of the phrase “reasonable excuse for contravening an order”. 

7. Subsection 70NAE(1) and 70NAE(5) are relevant to this matter:

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   70NAE(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).

8. Here, the circumstances are somewhat different, as the Respondent has never claimed any fear for the child’s health or safety but it is noteworthy that subsection 70NAE(1) sets out circumstances but does not attempt to limit the circumstances to those enumerated in the following subsections.   

9. The Mother in her affidavit of 15^th July indicated that she had attended Court on 17^th June, received new Court Orders, noted that all previous orders are dismissed, therefore effective on 17^th June she believed that the new orders were to be enforced exactly as written. She said she had previously appeared before the Court to defend contravention proceedings brought by the Applicant and therefore she was careful that she read the orders fully and complied exactly with the orders as read.  On the day that the orders were made, there were exactly 14 days before the child X was due to fly to Adelaide.  The Orders stated that X was due to fly to Adelaide for contact with his father for the June school holiday period on Saturday 2^nd July 2016.

10. The mother deposed at paragraphs [7] and [8] of her affidavit:

    At the time of the orders being made, the Applicant asked Magistrate Scarlett for advice on whether he could retain the previously booked flights which were already booked for the incorrect travel times.  Magistrate Scarlett responded verbally to confirm the existing flight booking needed to be changed and commented that he did not imagine that it would take too much to change it.  Magistrate Scarlett also commented that the Applicant was welcome to contact the Respondent to see if she would compromise on the flights.  I therefore took the court orders of Magistrate Scarlett at their word and I awaited notification of the applicant as to the flight that he booked for Y to travel on 2^nd July 2016.

    I did not receive notification from the Applicant’s replacement flight he had booked.[7]

    [7] Affidavit of Ms Harris 15.7.2016 at [7]-[8]

11. She went on to say that she communicated that the child would be flying to Adelaide on 2^nd July.  She noted the Court orders clearly stated that he was to leave on the Saturday morning and made plans to travel to Melbourne on the Saturday morning with her younger two children for a week’s holiday.  Those plans did not include the child.

Whether a Reasonable for the Contravention has been established

1. This is the reasonable excuse that the Mother has alleged.  I did indicate that I would order a transcript of the proceedings on 17^th June, but it is quite clear that this is just another instance of a failure of communication between the parties.  The Father is, and has been, intensely critical of the Mother and, indeed, on 15^th July delivered over the telephone a lengthy, apparently prepared, diatribe enumerating what he perceived to be the faults of the Mother, not just at the particular instance but over a period of years. 

2. The Mother told the Court that she felt that the orders needed to be complied with to the letter, which is why she did not accede to the Father’s request for the flight to be brought forward for a day. 

3. It is concerning, however, that by 11^th July, the child still had not made it to Adelaide, which is why I found there was not a reasonable attempt to comply with the Order.

4. What then has to be decided is whether a reasonable excuse has been established and, following on from that, what should be done. The Father seeks that the contravention without reasonable excuse should be made out and seeks the imposition of a monetary penalty.  He also seeks make-up time.  The Mother opposes a monetary penalty.  I have some concerns as to the effectiveness of the imposition of a monetary penalty, even if I were satisfied that it were an appropriate sanction.  First, the Court must be satisfied that the Mother has not established a reasonable excuse.

5. On balance, I believe that she has but she must be aware that the spirit as well as the strict letter of the Orders must be complied with. It will not do for the mother to withhold the child for a period of several days because of an impasse with the father over flight times, as has happened on this occasion.

6. What is particularly relevant is section 70NDB of the Family Law Act. Section 70NDB is found in subdivision D, where a contravention has been established but a reasonable excuse has been established for a contravention. Section 70NDA says that the subdivision applies if:

   (a)a primary order has been made, whether before or after the commencement of this Subdivision; and

   (b)a court having jurisdiction under this Act is satisfied that a person (the respondent ) has, whether before or after the commencement, committed a contravention (the current contravention) of the primary order; and

   (c)the respondent proves that he or she had a reasonable excuse for the current contravention.

1. Section 70NDB goes on at subsection (1) to provide, if:

   (a)the primary order is a parenting order in relation to a child; and

   (b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

   the Court:

   (c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and

   (d)  must consider making that kind of order.

   Subsection (2) provides that:

   The Court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the Court to do so.

2. What clearly emerges here is that as a result of the contretemps between the parties, the child missed out on spending time with his father for a significant portion of the school holidays.  He did not, in fact, get to travel to Adelaide until the second week of the school holidays when it was always the intention of the order that he would spend two weeks with his father in the mid-year school break.  It is regrettable that the surgery which was scheduled to take place was not able to take place because the child was not in Adelaide.  The Father originally told the Court that he did not believe that the surgery could take place now until January but later modified that view and indicated it was possible that the surgery might take place in the September school holidays.

Order for Make-up time

1. If ever there were a case for an order to be made for make-up time for the Father, this is such a case.  Even though the communication between the parents is poor and it appears to me that the parents’ lack of communication combined with an intransigent attitude on the part of the Father and a determination verging on stubbornness on the part of the Mother led to the child not travelling on a flight to Adelaide on either of the days nominated by the parents, it is regrettable that the child did not, in fact, travel to Adelaide until the matter came before the Court the following Monday. On that day I made it my priority to see that the child could get to Adelaide to at least spend a week with his father.

2. I propose therefore to make an order providing that Order 6(d) made on 17^th June 2016 should be suspended and that for the September school holiday period, the child should spend the entire school holiday period with the Father from Saturday 24^th September to Sunday 9^th October.  I will specify in the Order the dates upon which the child will travel, so as to avoid the possibility of confusion and from a procedural point of view, I will suspend the primary order between 23^rd September and 10^th October. 

3. I am not satisfied that this is a matter where any order for costs should be made and I have considered but I have decided not to make any order for monetary compensation.  The primary purpose of these proceedings should be to ensure that the child spends time with the Father in compliance with the Court’s original expressed intentions in the earlier orders which were only made a few weeks previously.

4. I should make it clear that even if the Father has previously booked flights well in advance, if those flights do not comply with the terms of the current parenting orders, they will need to be changed.  The orders draft and set out, in my view, a very clear way in which the parenting arrangements for the child are to take place, including the exact times that the child should spend with his father and when he should be returned to the Mother.  The Mother is correct in her view that in these circumstances, the court orders must be complied with strictly.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 20 July 2016