Forbes and Perry
[2011] FMCAfam 194
•15 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FORBES & PERRY | [2011] FMCAfam 194 |
| FAMILY LAW – Contravention proceedings – whether mother had reasonably excuse. |
| Family Law Act 1975, ss.70NEB; 70NDA; 71NAD; 65N |
| Childers & Leslie [2008] FamCAFC 5 |
| Applicant: | MR FORBES |
| Respondent: | MS PERRY |
| File Number: | SYC 479 of 2010 |
| Judgment of: | Walker FM |
| Hearing date: | 19 January 2011 |
| Date of Last Submission: | 19 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
THE COURT ORDERS THAT:
a finding be recorded that the mother on 5 September 2010, without reasonable excuse, contravened order 2(e) of the orders made on 2 August 2010.
a finding be recorded that the mother on 6 September 2010, without reasonable excuse, contravened order 2(f) of the orders made on 2 August 2010.
a finding be recorded that the mother on 13 September 2010, without reasonable excuse, contravened order 2(g) of the orders made on 2 August 2010.
a finding be recorded that the mother on 15 November 2010, without reasonable excuse, contravened order 2(i) of the orders made on 2 August 2010.
pursuant to section 70NEB(1)(b) of the Family Law Act1975 (Cth), unless otherwise agreed, the child, [X] born [in] 2004, is to spend eight (8) hours of compensatory time with his father and that such compensatory time should be provided by extending [X]’s time with his father by a period of two (2) hours on each of the next four (4) occasions upon which he spends time with his father following the making of these orders;
should arrangements for [X]’s changeover between his parents at a Contact Centre not allow for such an extension of time as provided for in Order 2, unless otherwise agreed, the father’s compensatory time is to be implemented by the father giving the mother twenty-one (21) days written notice of a day when he is available to spend eight (8) hours with [X]. Provided the father gives such notice, the mother is required to make [X] available to spend the time with his father at the date and times nominated by the father in accordance with these orders.
IT IS NOTED that publication of this judgment under the pseudonym Forbes & Perry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 479 of 2010
| MR FORBES |
Applicant
And
| MS PERRY |
Respondent
REASONS FOR JUDGMENT
The father filed a Contravention Application on 28 October 2010 and a further Contravention Application on 30 November 2010. These applications both allege that the mother contravened parenting orders of 2 August 2010 which were interim consent orders made between the parties and the Independent Children’s Lawyer.
Order 1 of the orders made on 2 August 2010 provides that the child, [X], born [in] 2004, live with his mother.
Order 2 is as follows:
That the child spend time with the father supervised by either
Ms F or Mr F at [E] McDonalds as follows:
(a)9 August 2010 between 4 and 6 pm;
(b)16 August 2010 between 4 and 6 pm;
(c)23 August 2010 between 4 and 6 pm;
(d)30 August 2010 between 4 and 6 pm;
(e)5 September 2010 between 4 and 6 pm, being Fathers Day, between the hours of 12 and 3 pm and such contact to extend to [E] Park across the road for a family lunch;
(f)6 September 2010 between 4 and 6 pm;
(g)13 September 2010 between 4 and 6 pm;
(h)20 September 2010 between 4 and 6 pm;
(i)27 September 2010 and thereafter every following Monday between 6 pm until further order.
There are a number of notations to the orders. Notation 2 provides as follows:
That the child is to be dropped off at McDonalds [E] by the mother or another family member and that person shall not be within view of the child and the child is to be collected by the supervisor and escorted to the father for contact at McDonalds and at the end of contact, the child is to be escorted by the supervisor back to the car park where the mother or another family member of the mother’s will collect the child.
The father, in his Contravention Application filed on 28 October 2010, alleges the following breach of the orders made on 2 August 2010:
a)that the child was not made available to spend time with him on 5 September 2010 in accordance with Order 2(e);
b)that the child was not made available to spend time with him on 6 September 2010 in accordance with Order 2(f);
c)that the child was not made available to spend time with him on 13 September 2010 in accordance with Order 2(g).
In his Contravention Application filed on 30 November 2010 the father alleges a fourth contravention as follows:
a)that the child was not made available to spend time with him on 15 November 2010 in accordance with Order 2(i).
The mother admitted that the child had not been made available to the father on each of these four occasions. She asserted that she had a reasonable excuse for not making [X] available to his father on each occasion.
The Evidence
Each of the parents was unrepresented in these proceedings. The mother relied on her affidavit sworn 29 October 2010, filed on 1 November 2010. She also relied on a sworn statement prepared by her on 19 January 2011 when the matter was before the Court for hearing.
The mother was cross-examined by the father who relied on his affidavit affirmed on 10 January 2011 and filed on 11 January 2011, and on the affidavit of Ms F affirmed on 17 January 2011 and filed on 19 January 2011 and on the affidavit of Ms E sworn on 10 January 2011 and filed on 11 January 2011. The mother did not require these witnesses for cross-examination, although she was advised of the possible consequences of this.
The Relevant Law
Section 70NAE concerns the meaning of reasonable excuse for contravening an order. The relevant sections are as follows:
Section 70NAE: Meaning of reasonable excuse for contravening an order.
(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).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
…
(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).
There is no doubt that by virtue of section 70NDA(c) the onus of proof in relation to reasonable excuse rests with the mother. Two further important provisions are section 70NAD(b) and section 65N.
Section 70NAD(b): Requirements taken to be included in certain orders.
For the purposes of this Division:
…
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and …
…
Section 65N: General obligations created by parenting order that deals with whom a child spends time with.
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
5 September 2010 (Contravention of Order 2(e))
The mother in her affidavit says that she and her partner, Mr G:
Took [X] to the park in accordance with the Court orders. I waited at the park for approximately 15 minutes and observed
Ms F and Mr B across the road at McDonalds. [1]The Court infers that “Ms F” is Ms F, the paternal grandmother, referred to in the orders and notations
[1] Paragraph 12 Mother’s affidavit.
The mother, in her affidavit, also says:
At about 12.15, the paternal step-grandfather, Mr B, came over to me and said, ‘What’s going on? Ms F wants to change the venue to McDonalds.’ [2]
And that Mr G said:
[2] Paragraph 13 Mother’s affidavit.
‘The Court orders say that [X] was to meet at the park.’
The mother says further that:
The maternal grandmother, Ms F, then came over to me and I say that her tone was of an aggressive nature. She said to me, ‘You’re ruining it. This is not in the child’s best interests.’ [3]
The mother then describes what happened, in her affidavit, and says:
Ms F then picked up [X] and his back was against her chest. [X] screamed, but Ms F would not let him go. [X] was hysterical as he was crying and yelling to Mr G, ‘Help me. I don’t want to go.’ [4]
[3] Paragraph 14 Mother’s affidavit.
[4] Paragraph 15 Mother’s affidavit.
The mother further says:
Mr G then took [X] from Ms F and gave [X] to me. I then sat in the car with [X]. I then saw the father come over to Mr G and grab his arm and push him up against the car. Mr B then pulled the father off Mr G.
and that she then telephoned the police.
Order 2 and Order 2(e) of the orders of 2 August 2010 are set out above. It seems the reference to 4pm to 6 pm in that Order has not been a source of any confusion. The orders are clear that [X]’s time with his father was to be at [E] McDonalds.
Ms F says in her affidavit that she and her partner, Mr B, and the father and his partner, Ms E, were at McDonalds and waited there until 12.15 pm. They then discovered that the mother was across the road at the park and she says that:
The four travelled in a car and parked approximately six car spaces away from the mother. Ms F says Mr G was standing outside the car and the mother and child were inside and that as the child got out of the car as if to go towards her, Mr G put his hand up and the child stopped. [5]
She reports that an argument then followed as to whether changeover was required to be at McDonalds or at the park.
[5] Paragraph 13 Affidavit affirmed by Ms F on 17 January 2011, filed 19 January 2011.
The mother and Ms F disagree as to what then occurred. Ms F says that she took the child’s hand and that Mr G then pushed her and she let go of the child. The father says that he got out of the car to assist his mother.
The mother says that [X] was crying and yelling that he did not want to go and that Mr G took [X] from Ms F and gave [X] to her and that she then sat in the car with him. The mother says that there was then an altercation between the father and Mr G and that she called the police, who subsequently attended the scene.
The mother at hearing said that at the time, there was an Interim Apprehended Violence Order for her protection from the father. She says that she called the police because a condition of the apprehended violence order was that the father not approach her.
The police record of the incident notes that there was a current Apprehended Violence Order which provided that the father could not approach the mother except in accordance with a Family Law Order. The police recorded that they did not find a basis to pursue a breach of the Apprehended Violence Order by the father. The father’s evidence is that subsequently the application for a Final Apprehended Violence Order was dismissed.
The mother, when cross-examined, was asked why she did not bring the child to McDonalds. She responded that she was under the assumption that “it was at the park where the orders were made in Court”. Clearly the mother is in error in her recollection of the wording of the orders.
There could be some argument that the mother’s mistaken belief about the location referred to in the orders could constitute reasonable excuse within section 70NAE(2). However, had the mother asserted this excuse, the Court would be reluctant in the circumstances to find pursuant to section 70NAE(2)(b) that she should be excused in respect of the contravention. The mother acknowledged in her affidavit that while she was in the park, she observed Ms F across the road at McDonalds. There is no suggestion by her that she then took any steps to facilitate the orders, taking into account the obligation upon her to make the child available to his father in accordance with the orders. Rather, she waited for Ms F to come across to the park. There is no explanation as to why her partner, Mr G, played any role in the changeover.
There can be little doubt that the ensuing altercation was stressful for the child who was just aged six. The mother in asserting that she has a reasonable excuse on this occasion relies on the child calling out that he did not want to go.
Section 70NAE provides that the circumstances in which a person may be taken to have a reasonable excuse are not limited to those set out in the subsections referred to above. Warnick J in the matter of Childers & Leslie [2008] FamCAFC 5 commented that the wish of a young child would not normally assist a claim of excuse for contravention. It would not be surprising, given the adult intervention, that the child, who was only six (6), would become distressed.
In his discussion of the nature of reasonable excuse, Warnick J commented that “reasonableness” needs to be seen in the context of the provisions of the Family Law Act1975 (Cth) (‘the Act”). In discussing the nature of the obligations imposed by parenting orders, Warnick J referred to section 65N of the Act which has been set out above. There is no doubt that the father was entitled to spend time with the child in accordance with a Court order. Certainly, on the mother’s own evidence, she saw the paternal grandmother but waited in the park observing her. The mother did not act in a positive way to facilitate the child spending time with his father. As the father said in his submissions, had the mother simply given the child to Ms F and left, the situation was unlikely to have developed as it did.
The Court finds that the mother has not established that she has a reasonable excuse for the contravention of Order 2(e) of the orders made on 2 August 2010.
6 September 2010 (Contravention of Order 2(f))
The father in his affidavit says that he and his mother attended to collect [X] pursuant to the orders but the mother did not arrive with the child.
The mother, in her sworn statement, says that she did not attend on 6 September 2010 as she was:
“Extremely fearful of her own safety and the child’s due to the incident on the previous day.”
The mother’s evidence at hearing was that the child “was petrified” about going to spend time with his father on 6 September 2010. She said that [X] did not want to attend at [E] McDonalds on 6 September.
The mother thus relies on the child’s wishes and also on the provisions of section 70NAE(5), in that she asserts that she believed on reasonable grounds that allowing [X] to spend time with his father was necessary to protect the health or safety of [X] and/or herself.
Section 70NAE(5)(a), in using the words “on reasonable grounds”, imports a test of reasonableness which is an objective test. Although, as noted by Warnick J in Childers & Leslie [2008] FamCAFC 5, it might include subjective elements.
The mother acknowledged at a hearing that no charges were laid by the police as a result of their attendance on 5 September. The mother presented no evidence of an objective basis for the fears which she says she had for the safety of herself and the child. The Court cannot find that she had a reasonable excuse on these grounds to fear for her own safety or that of the child. The Court finds that the mother has not established that she had a reasonable excuse to fear for her own safety or that of the child and that accordingly she had no reasonable excuse for her contravention of Order (f) of the orders of 2 August 2010.
13 September 2010 (Contravention of Order 2(g))
The next occasion which [X] was to have spent time with his father pursuant to the orders of 2 August 2010 was 13 September 2010. The mother’s evidence is that she was unable to provide the child in accordance with the orders because she had made an appointment for the child to attend a counselling session at the time he was to spend with his father. She says that she sent a text message to the maternal grandmother who was required to travel some distance to supervise [X]’s time with his father. She says she advised the paternal grandmother that she would be late and offered to change the time to a time which would start and conclude an hour later.
The mother says she subsequently received a telephone call from her solicitor saying that the father had cancelled the arrangements for [X] to spend time with him on that occasion.
The father says in his affidavit that he was advised by his solicitor that the mother could not attend with [X] at 4 pm as she had made an appointment for [X] to see a psychologist and that she had suggested that the father might spend time with [X] from 5 to 7 pm instead of from 4 to 6 pm. The father says he responded that this was too late and felt that it was “not appropriate for him to meet with his son after he had seen a psychologist.” He said that his mother unfortunately did not have another time available during the week when she was available to supervise his time with [X].
At hearing, the mother said that it was only on the 13 September that she was given the appointment for [X] to see the psychologist and that this arose because of a cancellation. She said that was the reason the father had received late notice. The mother’s evidence was that she wanted [X] to see a counsellor because of the events of 5 September. She denied that she had no intention for [X] to spend time with his father on 13 September 2010. However, as the father suggested to the mother, there can be little doubt that when she made the appointment for [X], she knew that it clashed with the time [X] was to be with his father in accordance with the orders.
The mother gives no evidence that would satisfy the onus on her of establishing a reasonable excuse for her contravention of the order on this occasion. The Court accordingly finds that the mother had no reasonable excuse for her contravention of order 2(g) of the orders made on 2 August 2010.
15 November 2010 (Contravention of Order 2(i))
The mother says in her sworn statement that she did not bring [X] to spend time with his father pursuant to the orders on this occasion because she was caring for her brother who had been discharged from the emergency ward at [C] Hospital.
In her statement, the mother refers to the relevant date as being 15 October 2010, rather than 15 November 2010. However, 15 November was the date of the alleged breach which was put to her and which she admitted. The mother’s evidence was that she offered the father two alternative occasions for him to have make-up time with [X] and that he refused both. She said that because of her work commitments, these were the only two alternative days that she could offer.
The paternal grandmother, Ms F, says in her affidavit that she received a text message from the mother at 2.15 pm on 15 November 2010 saying that her brother was in hospital, that she would not be able to attend at McDonalds that afternoon and suggesting the possibility that another day could be arranged during the week. The paternal grandmother says that she responded to the mother by text message shortly after saying that she had taken the afternoon off work. In her text message she asked about another time when the mother would bring the child. She says that the mother did not respond until 18 November when she suggested that she could offer an alternate two hours that afternoon or from 8 am to 11 am the following Saturday morning. The paternal grandmother said that she was at work that afternoon.
The mother at hearing agreed that her brother was not admitted into hospital but had been treated in the emergency unit. She agreed that he was discharged at 3 pm on 15 November.
The mother says in her statement that her parents were unable to care for her brother that afternoon. She said in her evidence that he was unable to care for himself and that she was not aware that the orders provided for another person to take the child to McDonalds at [E]. It is clear that this is referred to in the notation rather than the orders. However, given that notation, there would be no basis for any complaint if the mother arranged for some other person to take [X] to the changeover location.
The father’s partner, Ms E, in her affidavit, says that [C] Hospital is only 5 or 10 minutes away from [E] McDonalds where the changeover of [X] between his mother, as the paternal grandmother, was to occur pursuant to the orders.
The mother has not adequately explained why she was not able to collect her brother, who is an adult, from hospital at 3 pm and also arrange for [X] to be at the changeover location at 4pm which, on the evidence before the Court, is only a short distance away from the hospital.
The Court finds that the mother has not established a reasonable excuse for her failure to comply with order 2(i) of the orders of 2 August 2010.
Penalty
The issue of any potential penalty which the Court might impose, should it find that the mother did not have a reasonable excuse, was raised at the hearing of the matter.
The father said that if the Court was to impose a penalty that he would seek compensatory time with [X].
The Court finds, pursuant to section 70NEA, that this is a matter which comes within subdivision E which applies to less serious contravention. The powers of the Court in dealing with such contraventions are set out in section 70NEB.
Section 70NEB(1)(a) provides that the Court may require a person who has committed the contravention to attend a post separation parenting program.
Section 70NEB(b) provides that if the current contravention is a contravention of a parenting order in relation to a child, the Court may make a further parenting order that compensates a person for the time the person did not spend with a child.
The mother submitted that if the Court found that she had no reasonable excuse for any of the contraventions and if the Court considered make-up time, it should be on the basis of the orders which applied at the time of the breach and accordingly any make up time should be supervised.
The father said that at the time of the hearing, his time with [X] was no longer required to be supervised. He said that he had recently spent three weeks with [X] during the school holidays and that from 4 February 2011 he would be spending each alternate weekend with his son. The mother did not dispute this.
The mother advised that she and the father were in the process of arranging the changeover which occurred when [X] was spending time with his father, to take place through a Contact Centre.
This is a matter where the Court finds that the mother, on the occasions of the contraventions which have been discussed, did not appreciate the seriousness of the obligations placed upon her by section 65N of the Family Law Act 1975 (Cth).
The Court takes into account that [X]’s time with his father has now been substantially increased and that the father makes no complaints at this time.
In the circumstances, the Court finds that an appropriate penalty in the matter is the provision of compensatory time between [X] and his father.
The father submits that his time with [X] on alternate weekends could be extended on Sundays from 4 pm to 6 pm. The Court, of course, does not know whether this will be feasible, when and if, arrangements are made for a changeover to occur through a Contact Centre. The Court needs to take this into account in the orders it proposes to make.
The Court proposes to make orders pursuant to section 70NEB(1) that [X] should spend eight hours of compensatory time with his father and that such compensatory time should be provided, unless otherwise agreed, by extending [X]’s time with his father by a period of two hours on each of the next four occasions upon which he spends time with his father following the making of these orders.
Should arrangements for [X]’s changeover between his parents at a Contact Centre not allow for such an extension of time, unless the parents otherwise agree, such further time is to be arranged by the father giving the mother twenty-one (21) days written notice of a day when he is available to spend eight hours with [X]. Provided that the father gives such notice, the mother should be required to make [X] available to spend the time with his father at the date and times nominated by him.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Walker FM
Date: 15 February 2011