Finley & Craig
[2023] FedCFamC2F 546
•12 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Finley & Craig [2023] FedCFamC2F 546
File number: BRC 15258 of 2019 Judgment of: JUDGE PARKER Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – CONTRAVENTION – failure to comply with orders for communication – inconsistent later family violence order – exposure of child to family violence – reasonable excuse Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 69ZT, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 70NFA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.68(a)
Domestic and Family Violence Protection Act 2012 (Qld) s 78
Cases cited: Jets & Maker [2010] FamCAFC 55
Jordan & Jordan (No 2) [2010] FamCA 341
Keehan & Keehan [2019] FamCAFC 250
McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401;
Division: Division 2 Family Law Number of paragraphs: 39 Date of last submissions: 1 May 2023 Date of hearing: 1 May 2023 Place: Adelaide via Microsoft Teams Counsel for the Applicant: Mr Thwaites Solicitor for the Applicant: Sterling Law Counsel for the Respondent: No appearance ORDERS
BRC 15258 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FINLEY
Applicant
AND: MR CRAIG
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
12 MAY 2023
UPON NOTING THAT:
A.The Court finds that the Father contravened order 12(d) the orders of 8 October 2020 as alleged by the Mother at count 2 of the Contravention Application filed on 4 October 2022.
THE COURT ORDERS THAT:
1.The Father:
(a)Enrol in a Parenting Orders Program and provide evidence of enrolment to the Mother within fourteen (14) days;
(b)Complete the program at the earliest available opportunity; and
(c)Provide evidence of completion to the Mother within seven (7) days of completion.
2.Order 9 of the orders of 8 October 2020 is discharged.
3.Communication between the parties in relation to matters concerning the children take place as follows:
(a)The parties communicate only via the Talking Parents co-parenting communication app (‘the app’);
(b)The parties each respond to all communications made by the other using the app within forty-eight (48) hours of the communication being made;
(c)The parties each do all acts and things required to download and sign up for the app within 48 hours of these orders being made; and
(d)The parties each be restrained from swearing or otherwise using abusive language in communications to each other made using the app.
4.In the event that the children or any of them are exposed to family violence in the Father’s care, the Father shall remove the children from the exposure immediately and notify the Mother of such removal forthwith.
5.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER
INTRODUCTION
The Applicant Mother, MS FINLEY (‘the Mother’) and the Respondent Father, MR CRAIG (‘the Father’) are the parents of the children X born in 2010 (aged almost 13 as at the date of the hearing); Y born in 2013 (aged 9) and Z born in 2013 (aged 9) (collectively ‘the children’).
Final parenting orders (‘the orders’) were made by consent on 8 October 2020. The orders provide, in summary, that the parties have equal shared parental responsibility for the children, that the children live with the Mother, and that they spend time with the Father on alternate weekends and during school holidays. The orders also make provision, relevantly, for communication between the parties via email and for the parties each to be restrained from exposing the children to family violence.
The application presently before the Court is a Contravention Application filed by the Mother on 4 October 2022 (‘the Contravention Application’). As originally filed, the Contravention Application alleged 26 breaches of the orders. Twenty-one of the counts were struck out prior to the hearing on 1 May 2023, which proceeded in relation to counts 2, 3, 21, 22 and 25 only. The Mother relied on affidavits filed by her on 26 September 2022 and 7 December 2022.
The Father did not attend or participate in the hearing on 1 May 2023. He had appeared in person at a directions hearing on 8 December 2022 during which the hearing on 1 May 2023 was listed. He had also appeared at an earlier hearing before a Senior Judicial Registrar in the National Contravention List on 28 October 2022 and had filed two affidavits in relation to the Contravention Application on 21 October 2022.
Prior to the hearing on 1 May 2023, the Father was sent the Microsoft Teams hearing link by email. On the day of the hearing, two attempts were made by Court staff to contact the Father to attempt to have him dial in or be added to the Microsoft Teams hearing. Those attempts were unsuccessful.
I am satisfied that the Father was on notice of the Contravention Application, the evidence before the Court and the hearing and chose not to participate. Pursuant to rule 11.68(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Contravention Application was heard and will be determined in his absence. I have regard to the contents of the two affidavits filed by the Father, but as he did not make himself available for cross-examination, I give that evidence limited weight.
THE LAW
The meaning of ‘contravened’ is set out in s 70NAC of the Family Law Act 1975 (Cth) (‘the Act’) as follows:
70NAC [Meaning of contravened an order] 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; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The Applicant bears the onus of proving the contravention on the balance of probabilities: Jets & Maker.[1]
[1] [2010] FamCAFC 55.
Reasonable excuse
Section 70NAE of the Act provides as follows:
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).
Section 70NAE sets out a non-exhaustive list of the matters which may be considered when making a determination as to whether a party will be taken to have a reasonable excuse for having contravened an order. The Court is entitled to take into account any and all matters which may be relevant in order to reach a conclusion as to whether a respondent has established that there was a reasonable excuse for a contravention.
Standard of Proof
The standard of proof that applies in determining whether a person has contravened an order, and if they are found to have done so, whether the person had a reasonable excuse for having done so, is proof on the balance of probabilities: s 70NAF of the Act. All findings in these reasons are made to that standard.
Section 140 of the Evidence Act 1995 (Cth) provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In applying s 140(2) of the Evidence Act, the Court must be mindful of the seriousness of contraventions of parenting orders, and the penalties that may be ultimately imposed. I have had regard to these considerations in making the findings outlined in these reasons.
COUNT 2
Count 2 of the Contravention Application alleged a breach of order 12(d) of the orders, which provides that ‘both parents …will not permit the children to be subjected to or exposed to acts of domestic violence.’ The act on the part of the Father said to have constituted a breach of that order was throwing an object through a wall in the presence of the child X.
The Mother’s evidence in relation to this count was that in mid-2022, the child X informed her that sometime between early to mid-2022, the Father had been engaged in a dispute with his partner, Ms B, and had thrown an object through a wall, making a hole which was required to be plastered and repainted. The Mother’s evidence was that X reported having felt scared. Although the evidence as to the events in question is hearsay evidence, as this is a child-related proceeding, the rule against hearsay does not apply and the evidence is admissible.[2] The Mother’s evidence given by way of affidavit was supplemented by oral evidence given in response to questions from the bench. The Mother’s evidence was unchallenged and credible and I accept it.
[2] Family Law Act 1975 (Cth), s 69ZT; Jordan & Jordan (No 2) [2010] FamCA 341.
The Father, in his affidavit, admitted that the object had gone through the wall, but denied having thrown it. He deposed that he had tripped over the object, causing it to slide into the wall. The Father also admitted having used some ‘obscene words’ but denied that they had been directed at his partner or the children. In circumstances in which the Father did not make himself available for cross-examination and called no evidence from his partner to support the his version of events, I am unable to accept this evidence. As submitted by Counsel for the Mother, no reasonable excuse was proffered by the Father in relation to this count.
I find that the Father contravened order 12(d) of the orders without reasonable excuse as alleged in count 2 of the Contravention Application.
COUNTS 3, 21, 22, 25
Each of the remaining counts alleged breaches of order 9 of the orders, which provides that ‘the parents shall communicate by email only but that such communication must be responded to within twelve (12) hours of any such message being received’. By these counts, it is alleged that in late 2022, the Mother sent emails to the Father to which he did not respond within 12 hours or at all.
The Father, in his affidavit, admitted that he had not responded to the Mother’s emails but asserted that he had a reasonable excuse for failing to do so, being that in late 2022, a family violence order was made in the Magistrates Court, pursuant to which he was prohibited from communicating with the Mother by email.
A copy of the family violence order was annexed to the Mother’s affidavit filed on 26 September 2022.[3] It provides, inter alia, that the Father ‘is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved or named person [ie the Mother] except the respondent may make contact with the aggrieved regarding contact and access issues in relation to the named children but only by use of an approved family law application.’[4] The order does not contain any general exceptions permitting acts that are otherwise authorised by orders made pursuant to the Act (‘family law orders’).
[3] Annexure -02.
[4] Mother’s affidavit filed 26 September 2022, annexure -02.
Although the Father’s evidence can be given limited weight in circumstances in which he did not participate in the hearing or make himself available for cross-examination, the existence and terms of the family violence order are undisputed facts.
Counsel for the Mother submitted that the existence of the family violence order did not constitute a reasonable excuse for the Father’s contravention of the orders because family law orders prevail over family violence orders to the extent of any inconsistency.
Having regard to the terms of section 68Q of the Act (which relates only to orders made under the Act which are inconsistent with existing family violence orders), and the terms of section 78 of the Domestic and Family Violence Protection Act 2012 (Qld), which envisages the making of family violence orders under that Act which limit the operation of family law orders, I do not accept that submission.
In any event, even if the family law order did prevail, it would be reasonable for an unrepresented party served with a later family violence order to assume that the family violence order operated to limit the operation of a family law order, and to avoid taking actions that would constitute a breach of the family violence order even if such actions were authorised (or, as in this case, required, by the family law order). This is particularly so in circumstances in which contravention of the family violence order constitutes a criminal offence. As such, I find that the Father had a reasonable excuse for his failure to comply with the orders as alleged in counts 3, 21, 22 and 25 of the Contravention Application.
MORE OR LESS SERIOUS CONTRAVENTION
Having made the findings outlined above, it is necessary to identify the consequential orders (if any) pursuant to Division 13A of Part VII of the Act that are appropriate in the circumstances of the case. There are two subdivisions with potential application, being Subdivision E and Subdivision F. Subdivision E applies in cases concerning less serious contraventions, and Subdivision F in circumstances involving more serious contraventions.
Section 70NFA sets out the circumstances in which Subdivision F (more serious contraventions) will apply, as follows:
(1) Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
Note:For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if a 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.
(3)This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(4)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
The scheme of the provisions leads to a starting point where Subdivision E applies to cases that are the first occasion where a sanction has been applied, and Subdivision F where there has been a previous sanction ordered.
In the present case, no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Father of the primary order or adjourned proceedings under s 70NEB(1)(c), and as such, the matter that falls for consideration in the determination of the subdivision to be applied is whether the Court is satisfied that the person, in this case the Father, has behaved in a way that showed a ‘serious disregard’ of his obligations under the primary order. Given the fact that the finding that has been made relates to an isolated incident and the fact that this is the first occasion upon which a finding of contravention of orders has been made against the Father, I am not satisfied that this threshold is met in the present case. As such, the provisions of Subdivision E of Division 13A of the Act are applicable.
CONSEQUENTIAL ORDERS
The powers of the Court in these circumstances are set out in section 70NEB(1) of the Act, which provides:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)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); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
In the present case, the Mother sought that the Father be ordered to participate in a post-separation parenting course, on the basis that he had previously been ordered to undertake such a course but had not done so. I note that order 8 of the orders of 12 June 2020 required both parties to undertake a Parenting Orders Program and provide evidence of completion to the other. I agree that it is appropriate for the Father to undertake such a course having regard to the nature of the contravention that has been proven and the evidence before the Court including but not limited to the content and tone of the emails sent by him to the Mother as annexed to his own affidavits, and I will order that he do so.
The Mother did not otherwise seek that any penalties or other consequential orders be imposed on the Father, and it was submitted on her behalf that imposing such orders was unlikely to be beneficial. This was a sensible and pragmatic approach in the circumstances. It was also consistent with established authority to the effect that the purpose of contravention proceedings is to secure future compliance with the orders of the Court and not to impose a punishment.[5] I am satisfied that the Father’s completion of a post-separation parenting course is the order most likely to lead to future compliance with the orders of the Court in the circumstances, and as such, none of the other remedies provided for in section 70NEB(1) of the Act will be imposed.
[5] McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401; Keehan & Keehan [2019] FamCAFC 250.
VARIATIONS TO ORDERS
In her affidavit filed on 7 December 2022, the Mother outlined a number of variations she sought be made to the orders. Section 70NBA of the Act provides the Court with the power to vary the orders in the present circumstances.
At the hearing, Counsel appearing on the Mother’s behalf pressed for a discharge of order 9 of the orders and its replacement with the proposed orders set out at items 9-11 on page 13 of her affidavit filed on 7 December 2022, together with an order as proposed at item 12 of that page. He did not otherwise press the proposed variations
Items 9-11 were, in summary:
(a)That the parties communicate only via the Talking Parents co-parenting communication app;
(b) That all communications be responded to within forty-eight (48) hours;
(c)That the parties each do all acts and things required to download and sign up for the app within 48 hours of the orders being made; and
(d)That the parties each be restrained from swearing in communications to each other made using the app.
Counsel for the Mother submitted that it was clear from the evidence of both parties that the existing regime of communication via email was not working effectively or serving the children’s best interests. I accept that submission. The complete breakdown of effective communication between the parties is clearly apparent on the evidence of both parties and in such circumstances, a continuation of the status quo in this regard can be expected to do nothing but undermine the children’s best interests. I note further that the proposed variation would resolve the inconsistency between the family law orders and the family violence order and would be directed to curing the difficulties apparent in the evidence adduced by both parties in relation to counts 3, 21, 22 and 25 of the Contravention Application.
The Father’s evidence was that he was not ‘tech savvy’ and did not know how to use a computer. I note that he managed either to prepare and file two affidavits for the purpose of these proceedings, or to arrange for this to be done on his behalf. He deposed that a communication app was ‘not compatible on [his] outdated device’. This evidence is not accepted in circumstances in which the Father did not make himself available for cross-examination. I note in any event that emails from the Father to the Mother as annexed to each of his affidavits end with the words ‘sent from my iPhone,’ and I infer from this that the Father has access to and operates a smartphone with internet access. The Father did not avail himself of the opportunity to appear at the hearing and make submissions in relation to the variations proposed by the Mother.
The Mother’s evidence, which was of course unchallenged, was that it is possible to sign up for and use the communication platform she proposes via a webpage, access to which is free, and that a significant benefit to the use of the app is that it provides evidence of when communications have been viewed, which provides an advantage over email communication. I accept this evidence.
The Mother sought a further variation to the orders to include a provision to the effect that in the event that the children are exposed to family violence in the Father’s care, the Father shall remove the children from the exposure immediately, take them to the Paternal Grandmother's home and notify the Mother of such removal forthwith. In the absence of evidence as to the Paternal Grandmother’s willingness to be involved in the operation of the orders in the manner proposed by the Mother, I am not prepared to specify her residence as the place to which the children must be removed, but I otherwise accept that the proposed order is likely to promote the children’s best interests and protect them from harm.
Having regard to the factors in section 60CC of the Act to the extent to which they are applicable given the narrow scope of the orders under consideration, I find that the variations sought by the Mother are in the children’s best interests and will vary the orders as sought by her.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 12 May 2023
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