Finch and Harris (No.3)
[2014] FCCA 2527
•5 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINCH & HARRIS (No.3) | [2014] FCCA 2527 |
| Catchwords: FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – where respondent found to have contravened parenting orders on five occasions – where respondent claims to have a reasonable excuse for each of the contraventions – whether reasonable excuse established – reasonable excuse established in respect of one contravention – where respondent did not prove that she had a reasonable excuse for four other contraventions – less serious contraventions – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NEA, 70NEB, 70NEC |
| Cases cited: Finch & Harris [2014] FCCA 2152 Finch & Harris (No.2) [2014] FCCA 2507 |
| Applicant: | MR FINCH |
| Respondent: | MS HARRIS |
| File Number: | SYC 7893 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 26 May, 28 October 2014 |
| Date of Last Submission: | 28 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2014 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
The Respondent Mother has established a reasonable excuse for contravening on a date in February 2014 Order 19 made on 8 May 2013.
The Respondent Mother did on 5 June 2013 without reasonable excuse contravene Order 26 made on 8 May 2013 in that she failed to make an appointment and consult with Dr G or another paediatric surgeon in respect of the medical condition of the child X born (omitted) 2013.
The Respondent Mother did on a date in June 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent Mother did on a date in July 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent Mother did on a date in August 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
Order 26 made by consent on 8 May 2013 is discharged and in substitution therefor the following Order is made:
With twenty eight (28) days of the date of this Order the Respondent Mother is to do all acts and things necessary to make an appointment in order to consult with Dr G or such other paediatric surgeon as the Respondent shall choose for the purpose of making such arrangements as may be necessary for the repair of the child X’s umbilical hernia and circumcision of the child’s penis.
The Court makes no other Orders as a consequence of the above contraventions.
All other Applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris (No.3) 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
On 19th September 2014 the Court found that the Respondent Mother had contravened three parenting orders made by consent on 8th May 2013 on five separate occasions (Finch & Harris[1]). As it is incumbent on the Respondent to establish, on the balance of probabilities, that she had a reasonable excuse for the contraventions (Family Law Act 1975 (Cth), s.70NAF(2)), the Respondent was granted leave to file and serve an affidavit setting out the facts upon which she sought to rely in support of any contention that she might wish to make that she had a reasonable excuse for all or any of the contraventions.
[1] [2014] FCCA 2152
The Respondent filed an affidavit on 3rd October 2014 in which she addressed all five of the counts of contravention found. The Court heard submissions from the parties on 28th October 2014.
The Orders contravened
The Respondent was found to have contravened Orders 19, 26 and 36 of the Orders made by consent on 8 May 2013.
Order 19 provides:
19.That the Mother will receive a post card addressed to X or letter from the Father to X on one occasion per month and provide X’s mail to X unopened, where the Mother will not destroy or throw out or interfere in any way with X’s mail content.
The Court found that the Respondent on a date in February 2014 contravened that Order by not providing mail unopened to the child or by destroying or throwing out or interfering with the content of the mail.
Order 26 provides:
26.That the Mother shall do all acts and things to make an appointment and to consult with X’s medical practitioners, in particular Dr G, Pediatric (sic) surgeon in respect of the repair of X's Umbilical hernia and Penis circumcision or such other pediatric (sic) surgeon of her choosing within 28 days of the date of the making of these Orders.
The Court found that the Respondent on 5th June 2013 contravened that Order by failing to make an appointment and consult with Dr G in respect of the child’s medical condition.
Order 36 provides:
That the Mother will contact and take X to receive counselling support sessions on a one to one basis with Ms B, psychologist, (“the child’s therapist”) of Kids and Co, (omitted) or such other location on a monthly basis and share equally in any GAP contribution if required for those sessions until August 2013.
The Court found that the Respondent contravened that order on three occasions, in June, July and August 2013, by failing to consult Ms B for the purpose of the child receiving counselling sessions.
Evidence and Submissions
The Respondent relied on her affidavit of 3rd October 2014.
In respect of the finding that she failed to provide mail to the child unopened, or destroyed or threw out or interfered with the content of the mail, the Respondent deposed that:
a)She had commenced a new job in February 2014, which requires her to leave home at 8:30am and return home at 6:00pm;
b)The Applicant sends mail to the child by registered post, which requires her to attend the post office to collect it;
c)Her working hours as a casual employee make it well-nigh impossible for her to start late in order to attend the post office to sign for a registered post article;
d)She has asked the Applicant not to send postal items by registered post but by ordinary post or express post, but he has declined to do so.
The Respondent deposed in her affidavit:
The court orders dictate that I convey to X mail that is received to our address unopened or tampered with, and I will continue to do so, as long as it is delivered to our address by ordinary or express post, and left there by a delivery driver or postman. I cannot arrange a late start to work one a month in order to attend the post office to collect mail for X either now or in the future, this is an unreasonable imposition. I do not consider my actions to be a contravention of the court orders.[2]
[2] Affidavit of Ms Harris 3.10.2014 at [1](f)
The Respondent added in her submission that the post office is not open on a weekend.
As to the findings about the contravention of Order 26 by not making an appointment for the child to see Dr G, the Respondent deposed that she had suffered financially since May 2013, because she was evicted from her rental accommodation due to her inability to pay rent and needed to make other arrangements. She also deposed that the Applicant had failed to comply with his obligations to pay Child Support in accordance with the assessment. She deposed:
f) I also applied to my superannuation provider for access to my superannuation to assist with these bills.
g) It has taken up to now to pay off those debts.
h) I was not financially able to meet my commitments to attend either the meeting with Dr G, or to make appointments with Ms B for financial reasons.
i) As per my Child support assessment, my taxable income was $43,000.00 per year, with three children to support and Mr Finch’s income was $140,000. Despite this, he has continued to lag behind with Child Support payments and has disputed the child support assessments in an attempt to ask the child support agency to recognise his care of X to be 42% and therefore reduce his child support. This has also impacted on my ability to pay for these medical appointments.
j) I have monitored X’s health, and he appears to have no ill effects due to his hernia. He has never suffered any pain or discomfort, or complained of any ill feeling.[3]
[3] Affidavit of Ms Harris 3.10.2014 at [4](f)-(j)
The Applicant denied that he was dilatory in meeting his child support obligations.
The Respondent submitted that she had suffered from mental illness, but this had been stable since July 2013. She is also scheduled for surgery, which will be performed under the public health system. She submitted that the Applicant would not compromise in respect of the Orders and would not permit her to have the child attended to under the public system.
The Applicant submitted that the Respondent was putting her own health concerns before those of the child. The Respondent replied that she sought treatment through the public health system, which the Applicant will not let her do for X.
Conclusions
It is well established that the Respondent is the party who must establish a reasonable excuse for a contravention. The standard of proof is on the balance of probabilities (s. 70NAF(2)).
Dealing with the first count, that the Respondent contravened Order 19 concerning the father sending letters to the child, there is nothing in the Order that specifies that the mail addressed to the child should be sent by registered post. The Father has chosen to add his own modification to the Order by sending mail by registered post, which necessarily involves the Mother attending the post office to sign for the letter. This appears to be unnecessarily complicated and troublesome to the Mother and, in my view, unwarranted.
The fact that the Father has chosen to send mail to his son by registered post leads to the inference that he does not trust the Mother and is seeking to control her parenting of the child. This is an example of what is known as “micro-managing parenting”. If the Father had sent the letters to his son by ordinary prepaid post, it is unlikely that this issue would be before the Court.
The Father’s actions appear to be unreasonable in imposing an unnecessary and unwarranted modification on the Order, which would normally be interpreted to refer to mail sent by ordinary prepaid post.
I am satisfied that the Respondent has established a reasonable excuse for the contravention and the count will be dismissed.
However, I am not satisfied that the Mother has established a reasonable excuse for her contravention of Order 26. This Order provides:
That the Mother shall do all acts and things to make an appointment and to consult with X’s medical practitioners, in particular Dr G, Pediatric (sic) Surgeon in respect of the repair of X's Umbilical hernia and Penis circumcision or such other pediatric (sic) surgeon of her choosing within 28 days of the date of the making of these Orders.
It will not do for the Respondent to claim, as she has done, that:
a)The child does not suffer from an umbilical hernia, as she did in the hearing; or
b)The child does not appear to suffer any pain or discomfort due to his hernia, as she deposed at subparagraph [4](j) of her affidavit.
The fact is that the Order is based on the premise that the child does have an umbilical hernia and requires a circumcision to his penis, and the mother consented to it. True it is that she was not legally represented at the time, but she consented to the order of her own free will.
The Respondent has not established a reasonable excuse for the contravention.
In respect of the three contraventions of Order 36, requiring the Respondent to make appointments for the child to see Ms B, psychologist, in June, July and August 2013, the Respondent claims that financial hardship precluded her from taking the child to see Ms B on those occasions. I note that the first of the occasions when the Respondent was required to take the child to Ms B was in the month of June 2013, only a month after she entered into the Consent Orders.
Either the Respondent did not give any thought to the effect of the Order when she agreed to it or her financial situation deteriorated so rapidly within a month that she found herself unable to comply with the Order. If the latter situation was the case, one would have expected some detailed evidence to that effect.
The Respondent does not appear to have made any effort to comply with the Order at all, let alone making any reasonable attempt. There is no evidence that she made any inquiry of Ms B in order to ascertain the likely cost of treatment, let alone making any appointment to take the child to see the psychologist.
The Respondent has not established a reasonable excuse for the three contraventions of Order 36.
Consequences of failure to comply with orders
As a finding has been made that the Respondent contravened Orders 26 and 36 without reasonable excuse, the Court must consider the order or orders that should be made as a consequence. Section 70NEA of the Family Law Act 1975 applies. In particular, subsection 70NEA(2) applies:
…if no court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
I am not satisfied that the circumstances in subsection 70NEA(4) apply, namely that the Respondent has behaved in a way that showed a serious disregard for her obligations under the primary order, which would preclude the application of Subdivision E of Division 13A of Part VII of the Act.
Accordingly, the powers of the Court to deal with these contraventions are those set out in subsection 70NEB(1), which are:
a)direct the person to attend a post-separation parenting program;
b)make a parenting order compensating a person for the time the person did not spend with the child as the result of the contravention;
c)adjourn the proceedings to allow either or both of the parties to apply for a further parenting order;
d)make an order requiring the person to enter into a bond under s.70NEC;
e)make an order requiring the person who committed the contravention to compensate the other person for expenses reasonably incurred;
f)make an order for costs; or
g)if no other order is made, make an order that the Applicant pay some or all of the Respondent’s costs.
I am not satisfied that attending a post-separation parenting program will assist the Respondent at present. She seems to be having difficulty with work and finances and requiring her to enter into a post separation parenting program would appear to impose a further burden upon her.
It is not the case that the Applicant has lost any time with the child as a result of the current contraventions. Indeed, in another decision handed down simultaneously with this one Finch & Harris (No.2)[4], the Applicant’s time with the child is to increase by one weekend per month until further order.
[4] [2014] FCCA 2507
I am not satisfied that the contraventions established, which are at the lowest end of the scale, are sufficient enough to require the Respondent to enter into a bond.
There is no evidence that the Applicant has reasonably incurred any expenses as a result of the contraventions.
The Applicant is not legally represented, so an order for costs is inappropriate.
I am not satisfied that there is any utility in making an order in respect of the three contraventions of Order 36, requiring the Respondent to contact Ms B, the psychologist, in respect of monthly counselling support sessions until August 2013. That time has passed and there is no evidence that the child is suffering psychologically from not having had those counselling sessions more than a year ago.
What is a concern, however, is the fact that the Respondent has not made an appointment for the child to see Dr G or another paediatric surgeon in respect of the child’s umbilical hernia and need for a circumcision of his penis, as required by Order 26.
This Order should be complied with. However, it is important to consider exactly what the Order says:
That the Mother shall do all acts and things to make an appointment and to consult with X’s medical practitioners, in particular Dr G, Pediatric surgeon in respect of the repair of X's Umbilical hernia and penis circumcision or such other pediatric surgeon of her choosing within 28 days of the date of the making of these Orders (emphasis added).
The Respondent claims at subparagraph [4](k) of her affidavit:
I am happy to take X to appointments via the public system in regards to his hernia and counselling, but Mr Finch will not agree to this.
From this subparagraph, it appears that the Mother is under the misapprehension that the father has the power of veto over her making arrangements for the child to see a paediatric surgeon in the public system, but that is not what the Order says. The Order provides that the Mother should take the child to consult with the child’s medical practitioners, particularly Dr G or another paediatric surgeon of her choosing.
It matters not whether the paediatric surgeon chosen by the mother is one who only takes private patients or one who is available to see patients under the public health system. It is the mother’s choice. That is what the order quite clearly says.
Orders to be made
In respect of the contravention of Order 26 without reasonable excuse, I propose to order that the Respondent should do all acts and things to make an appointment for the child to be seen by Dr G or such other paediatric surgeon as she chooses for the child’s necessary treatment in respect of his umbilical hernia and circumcision of the child’s penis within 28 days.
To avoid uncertainty, the time limit of 28 days does not apply to the date of the appointment but to the doing of the acts and things necessary to make the appointment. If the appointment with a specialist is to be made through the public health system, there is no guarantee that an appointment will become available within 28 days.
As there is no utility in making any order in respect of the contraventions of Order 36, I do not propose to do so.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 5 November 2014
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