Ford & Diaz
[2023] FedCFamC2F 492
•1 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ford & Diaz [2023] FedCFamC2F 492
File number(s): MLC 2858 of 2022 Judgment of: JUDGE PARKER Date of judgment: 1 May 2023 Catchwords: FAMILY LAW – CONTRAVENTION – knowledge of existence of orders – reasonable excuse Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB, 70NEC, 70NF
Cases cited: Jets & Maker[2010] FamCAFC 55
Keehan & Keehan [2019] FamCAFC 250
McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401
Division: Division 2 Family Law Number of paragraphs: 30 Date of last submission/s: 28 April 2023 Date of hearing: 28 April 2023 Place: Adelaide via MS Teams Counsel for the Applicant: Self-Represented Counsel for the Respondent: Self Represented ORDERS
MLC 2858 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FORD
Applicant
AND: MS DIAZ
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
1 MAY 2023
UPON NOTING THAT:
A.The Court finds that the Mother has contravened the orders of 12 April 2022 on five occasions as alleged by the Father in his Contravention Application filed on 12 October 2022.
THE COURT ORDERS THAT:
1.All extant applications are 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 Father, MR FORD (‘the Father’) and the Respondent Mother, MS DIAZ (‘the Mother’) are the parents of the child X born in 2016 (‘the child’), who is presently aged 6.
Final parenting orders (‘the orders’) were made by consent on 12 April 2022. The orders provide, in summary, that the parties have equal shared parental responsibility for the child, that he live with the Mother, and that he spend defined time with the Father.
The application presently before the Court is a Contravention Application filed by the Father on 12 October 2022, alleging five contraventions of the orders. Both parties represented themselves at the hearing of the application. The Father relied upon an affidavit filed on 12 October 2022. Both parties gave oral evidence and were cross-examined by the other.
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:
(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).
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 contravention of 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 having contravened an order.
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 this consideration in making the findings outlined in these reasons.
FIRST TO FOURTH ALLEGED CONTRAVENTIONS
The first alleged contravention of the orders is that on 18 May 2022, the Mother failed to make the child available to spend time with the Father in accordance with order 3(a)(ii) of the orders. Order 3(a)(ii) provides, in summary, that the child spend time with the Father from the conclusion of school on Wednesday until 12.30pm on Sunday in each alternate week.
The second alleged contravention of the orders is that on 21 September 2022, the Mother failed to facilitate the child spending time with the Father in accordance with order 3(a)(ii) of the orders.
The third alleged contravention is that on 4 September 2022, the Mother failed to comply with order 3(f) of the orders, which provides that the child spend time with the Father from 10am to 5pm on Father’s Day.
The fourth alleged contravention is that on 14 September 2022, the Mother failed to facilitate the child communicating with the Father in accordance with order 6 of the orders. Order 6 provides that the parties be at liberty to communicate with the child by FaceTime, telephone and/or other electronic means between the hours of 5.00pm and 8.00pm each night when he is in the other party’s care.
The Mother admitted that each of these contraventions had occurred as alleged, but claimed that she had a reasonable excuse for having contravened the orders. Her asserted reasonable excuse in relation to each of the first to fourth alleged contraventions was that she had been unaware that there were orders in force. Her evidence was that she had not seen a copy of the orders until she was served with the Contravention Application and that she had believed that the parties had entered into an informal parenting agreement rather than legally binding orders. She gave evidence that she was going through a difficult emotional time at the time of the alleged contraventions and did not have a comprehensive understanding of the circumstances surrounding the making of the orders.
The orders were made by a Judicial Registrar in chambers on the basis of an Application for Consent Orders at a time when the Mother was unrepresented. They were filed by a solicitor on behalf of the Father. The Father, who bears the onus of proof in this regard, did not adduce any evidence of a copy of the orders having been provided to the Mother after they had been made.
However, the Mother’s assertion that she was unaware of the existence of the orders at the time of the alleged contraventions was either contradicted by or did not sit well with other aspects of the evidence of both parties, including:
(a)The Mother’s acknowledgment that she had signed both the minute of consent orders which was ultimately sealed by the Court (the header to which clearly reads ‘consent orders’) and the Application for Consent Orders with which it was filed;
(b)The Mother’s acceptance, under cross-examination, that the drafting and making of the orders had been preceded by an earlier attempt by the parties to have orders made by the Court, which had resulted in an earlier Application for Consent Orders being requisitioned on the basis that the proposed orders were not in enforceable form;
(c)The Father’s evidence, which I accept, that the parties had engaged in numerous discussions about the orders prior to the alleged contraventions;
(d)The Mother’s assertion that she had failed to make the child available on the occasion referred to in the first alleged contravention because she had been afraid of being constricted by the orders;
(e)The Mother’s allegation that prior to the alleged contraventions the Father had threatened her with legal consequences arising from any non-compliance such as removal of the child from the jurisdiction;
(f)The email from Ms B, the Principal’s Assistant at the child’s school, to the Father, sent on 18 May 2022, being the date of the first alleged contravention, which was annexed to the Father’s affidavit. In that email, Ms B recorded that she had told the Mother that the school had been advised by the Father that he would be picking the child up from school that day ‘as per the Court orders’.
I do not accept the Mother’s evidence in this regard and find that she was at all material times aware that there were orders in place and of her obligations pursuant to the orders. As such, I am not satisfied that the Mother has established a reasonable excuse for her non-compliance with the orders. I find the first to fourth contraventions proven.
FIFTH ALLEGED CONTRAVENTION
The fifth alleged contravention was that the Mother contravened order 13 of the orders, which provides that any decisions about the child’s healthcare, medical operations, vaccinations and administration of prescription medicine must be agreed upon in writing between the parties. The Father alleged that the Mother had made decisions about the child’s healthcare without his knowledge or consent. The evidence adduced by the Father in support of this allegation was that he had received an email from the Mother on 15 September 2022 in which she said that the child was ‘now seeking help for his psychological abuse after being hospitalized for stress.’ The Father’s evidence was that he had not been consulted about either the hospitalisation or the ‘help’ being sought.
The Mother denied the fifth alleged contravention. She did not deny having sent the email. Her evidence was that the child had been hospitalised at the behest of medical professionals for causes which were initially unknown and required investigation. The Mother asserted, and I accept, that it was reasonable to act unilaterally in the context of a medical emergency. I do not, however, accept that it was reasonable for her to continue to exclude the Father from medical decision-making once any period of immediate urgency had passed. The Mother’s evidence was that she had attempted to keep the Father informed but had been unable to get through to him by telephone. She was unable to produce a telephone call log demonstrating any attempts to telephone the Father.
The Mother’s evidence in relation to her communication with the Father following the child’s hospitalisation was difficult to follow. She asserted that the Father had spent time with the child either the day after or shortly after the hospitalisation and that she had told him about the hospitalisation at a handover. This did not sit well with the contents of the email she sent to the Father indicating that she was ‘denying care,’ apparently on the basis of that hospitalisation. The assertion that the child was out of hospital and fit to spend time with his father shortly after the incident also did not sit well with her evidence as to having made decisions surrounding the hospitalisation in emergency circumstances.
The Mother also gave evidence that the reference in the email to the child ‘seeking help for his psychological abuse’ was not a reference to obtaining professional assistance but to speaking to a babysitter or family friend about his feelings. This explanation was not consistent with the meaning conveyed by the email and was not credible. I find that the Mother contravened order 13 of the orders as alleged by the Father.
MORE OR LESS SERIOUS CONTRAVENTIONS
Having made the findings outlined above, it is necessary to identify the consequential orders (if any) that are appropriate pursuant to Division 13A of Part VII of the Act. 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.
(4)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.
(5)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 person 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 Mother, has behaved in a way that showed a ‘serious disregard’ of her obligations under the primary order. Given the relatively small number of occasions upon which the contraventions occurred and the fact that this is the first occasion upon which findings of contravention of orders have been made, 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.
The Father sought merely that findings be made as to the contraventions of the orders, so that there would be a formal record of the contraventions having been proven in the event that further compliance difficulties arose in future. He did not seek that any penalties or other consequential orders be imposed on the Mother.
This was a sensible and child focused approach. 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.[2] The Mother’s unchallenged evidence was that the parties’ communication and ability to coparent had improved in recent times. It is to be hoped that the parties can move past the difficulties they have experienced in the past with the implementation of the orders and continue to improve their communication and co-operation.
[2] McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401; Keehan & Keehan [2019] FamCAFC 250.
There will be no consequential orders made arising from the findings in these reasons.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 1 May 2023
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