FRANNER & HARKNESS (No.2)
[2020] FCCA 1500
•23 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRANNER & HARKNESS (No.2) | [2020] FCCA 1500 |
| Catchwords: FAMILY LAW – Contravention – reasonable excuse. |
| Legislation: Family Law Act 1975 (Cth), ss.79AE |
| Cases cited: TVT & TLM [2005] FMCAfam20 @ [33] Conry & Conry [2006] FMCAfam554 @ [34] |
O’Brien & O'Brien (1993) FLC 92-396 @ [8], [11] &[13]
Stevenson v Hughes (1993) FLC 92-363
| Applicant: | MR FRANNER |
| Respondent: | MS HARKNESS |
| File Number: | LNC 288 of 2019 |
| Judgment of: | Judge McGuire |
| Hearing date: | 4 June 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Launceston |
| Delivered on: | 23 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Verney |
| Solicitors for the Applicant: | Rae & Partners (Devonport) |
| Counsel for the Respondent: | Mr P Sullivan |
| Solicitors for the Respondent: | Paul Sullivan Lawyer |
ORDERS
That Court finds that the mother has breached the relevant Court orders on two counts as set out in the Contravention application being on 9 April 2020 and 7 May 2020.
IT IS NOTED that publication of this judgment under the pseudonym Franner & Harkness (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 288 of 2019
| MR FRANNER |
Applicant
And
| MS HARKNESS |
Respondent
REASONS FOR JUDGMENT
Applications
The father is the applicant in a Contravention application filed 19 May 2020. He alleges two counts of contravention of final parenting orders dated 27 March 2020 made after a defended hearing. The particulars are as follows:
(a)Contrary to order 3(b) of the said orders that on 9 April 2020 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child, X born in 2007 by failing to provide the child to the Applicant;
(b)That contrary to order 3(a) of the said orders that on 7 May 2020 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children, X born in 2007 and Y born in 2005 by failing to provide the children to the Applicant.
The relevant orders provide in respect of count one that the child X was to spend time with the father for one half of each Tasmanian gazetted school holidays. No issue was taken that the 9 April 2020 represented the commencement of time during school holidays.
Order 3(a) of the said orders provides for time for the children with the father each second weekend from the conclusion of school on Thursday (or 4.00 p.m. if not a school day) until the commencement of school on the following Monday (or 9.00 a.m. if not a school day).
Both parties were represented at the hearing before me.
Pleas of guilty but with a reasonable excuse were entered through Counsel on behalf of the respondent mother in respect of both counts.
Both parties provided affidavits, gave evidence and were cross-examined. Neither party adduced further evidence.
Relevant Law
By reason of the respondent admitting the particulars of each count of the application, the onus falls on her to show a 'reasonable excuse' on the balance of probabilities in defence of each count. Whilst the notion of 'reasonable excuse' is not exhaustively defined in the Family Law Act 1975 (‘the Act’), and the defence is available at large, the legislation does offer two specific defences the under this notion. Firstly, it is a defence for a party to show that he or she did not understand the obligations created by the order. Obviously, the onus here sits with the respondent arguing such a defence. Secondly, specific defences are available at ss.70AE(4), (5), (6) and (7) which provide:
(1)The respondent has a belief on reasonable grounds that to act in breach of an Order is necessary to protect the health or safety of a child or a relevant person; and
(2)The breach continues only for so long as is necessary to effect the protection.
The conjunctive ‘and’ is a necessary function of this defence.
The Evidence and Consideration
Counsel for the respondent mother argued generally that it is open for the Court to find on the balance of probabilities that the respondent has successfully raised and argued the defence of her not understanding the obligations created by the order. Firstly, her affidavit of 27 May 2020 does not, on my reading, make any reference to such a claim. To the contrary, the inferences I take from the respondent’s evidence serve to contradict the respondent being oblivious to her obligations. Specifically, at [12] the respondent states:
On the 9th April 2020 X and Y were home, not attending school, because of Covid-19. Mr Franner was due to collect them for his school holiday time, so I finished work in Town N early, at 2.00pm, and returned home to have the children ready for Mr Franner to collect.
Further, at [15] the respondent deposes:
On Thursday the 7th May, once again I knocked off work at 2.00pm and returned to Town O to get X and Y ready for Mr Franner to collect them at 4.00pm.
Further, the relevant orders had been made as recently as 27 March 2020. Those orders carry, as do all parenting orders, a statutory annexure entitled 'Parenting orders – obligations, consequences and who can help'. Specifically, in that document appears the following under the heading 'Your legal obligations':
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order…
No reference was made by the respondent as to that statutory annexure and she is deemed to have read the document. Further, I note that the respondent was represented by a solicitor advocate during the proceedings and at the trial of this matter and that she was provided with the orders through that solicitor.
In all of those circumstances, I reject the respondent's argument that I can infer she to have not understood the obligations on her created by the orders.
Secondly, on my understanding of the evidence and submissions, the respondent argues that she acted in good faith and did all things necessary to facilitate and encourage the children to attend for time with their father on each of the two occasions, albeit unsuccessfully. To this end, she says that the children were adamant that they did not wish to attend. Further, she argues that the father's behaviour on each occasion was such that it is open for me to find that he effectively acquiesced in the children not attending for time with him.
The wife's affidavit references pre-existing concerns in her of the children's reluctance and including her enlisting counselling assistance. The relevance, however, of such is limited and noting, in any event, such actions pre-date the orders. Whilst the respondent’s actions in attempting to provide assistance for the children is admirable, it is her discharge of obligations on the particular days that ground the charges against her. I accept, however, that there have been ongoing issues in respect of the children going to their father consistently and that the mother has been proactive in obtaining some assistance for the children.
Count 1 – 9 April 2020
In respect of the first count of 9 April 2020 the children were to attend their father for two weeks of school holidays. He was to collect them on 9 April. He attended in accordance with the orders. The mother deposes that X had exchanged text messages with the father and annexes to her affidavit those messages. They disclose the child telling the father that he would not be coming for time. The father responds 'ok I'm not going to make you come it really disappoints me that you don't want to if you change your mind I will come & get you anytime'. Apparently the exchange of text messages took place shortly before the prescribed change over time. Nevertheless, the father arrived to collect the children. The daughter Y did attend at time with the father. The mother then deposes that, at no time did Mr Franner contact me about X not going nor did he contact X during that week'. Further, the mother deposes that on 13 and 14 April 2020 she communicated with her lawyer saying inter-alia:
… I knew X didn't want to go, but I tried to ignore it. Turns out X sent his father a message informing him of this which I have sent you. You will see the conversation that took place between X & Mr Franner. Mr Franner collected Y & left with no disturbance & needless to say X stayed in my care. Mr Franner has not contacted X or myself & hasn't caused any issue with this matter, as yet…
The issue, of course, is whether the mother was sufficiently active in her obligations to facilitate, encourage and persuade the child to attend pursuant to the orders?
The obligation is a positive one and the bar is set high in respect of that obligation. The obligation sits with the primary parent and not with the 'receiving' parent.
My colleagues Judges Riethmuller and O'Sullivan TVT & TLM[1] and Conry & Conry[2] have considered the onus on the primary parent and his Honour Judge Riethmuller in the former says as follows:
[1] [2005] FMCAfam20 @ [33]
[2] [2006] FMCAfam554 @ [34]
Whether the steps taken are a 'reasonable attempt to comply' with a children's contact Order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
(a)The resident parent must actively encourage the child to attend contact as ordered;
(b)That Courts have been careful to consider whether in reality, not just on the face of things, the person has taken reasonable steps to deliver the child:O’Brien & O'Brien (1993) FLC 92-396 @ [13]; and
(d)It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep… Stevenson v Hughes (1993) FLC 92-363;
(d)Similarly, I mere request that the child telephone, or come to the telephone is insufficient;
(e)Once an Order for contact has been made, it is 'no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind': see O'Brien & O'Brien (1993) FLC 92- 396 [11];
(f)A residence parent ought to make 'a child understand it was the [resident’s]attitude that the child had to go [on contact]: see O'Brien & O'Brien (1993) FLC 92-396 at [8];
(g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: see P & P [2002] FMCAfam 315 (unrep) @ [14];
(h)It must be noted that 'an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or a manner which of its own suggests that this is your obligation under the Order but mummy really does not mind if you say no.' Such an invitation is insufficient: see Stevenson v Hughes (supra);
(i)It is not sufficient to make a token effort that compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but convey the burden on both the child and the custodian of compliance with the obligation': see Stevenson v Hughes (supra) at [6];
(j)It is not sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect,: 'you see, I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if they were at an end of the matter; see Stevenson v Hughes (supra) at [6]; and
(k)The residence parent is 'not entitled to treat the other party as an enemy who are to be thwarted wherever possible, either by active steps or positive resistance': Stevenson v Hughes (supra) at [8].
[12] of the mother's affidavit, consistent with her Counsel’s cross-examination of the father, appears to me to deflect some responsibility to the father as for instance when she says ‘at no time did Mr Franner contact me about X not going nor did he contact X during that week.’ Further, the tenor of her evidence and the text of [12] does not satisfy me that the mother was actively encouraging X to go with his father but rather accepting of the child's text message to the father and the father leaving the property without the child. Neither of these actions release the mother from her obligations. I do not accept, in the circumstances of the father arriving to collect the children, that his return text to the children stating inter alia ‘Ok I will not make you’ to in any way relieve the mother of her obligation.
As such, I am not satisfied that the mother has shown a reasonable excuse in respect of count one relevant to 9 April 2020.
Count 2 – 7 May 2020
On this occasion neither X nor Y attended with their father. This was for a weekend time. Significantly, this weekend appears to have been the first weekend after a school holiday time and in this sense might constitute a continuing prima facie breach.
The mother raises her 'reasonable excuse' at [15] of her affidavit. She says that Y was 'anxious and at the point of tears'. The mother says that she calmed her daughter down and asked her to talk to the father and 'tell him why she didn't want to go'. At this point, I see the mother as merely delegating her responsibility to the father and this does not, therefore, constitute a discharge of her obligations. Similarly, she says to X 'mate I need you to go out and talk your father'. Again, this is simply placing the onus on the child and/or the father and does not constitute a discharge of her positive obligation. Further, the mother’s passive attitude is demonstrated by the reported conversation between herself and X as follows:
X: ‘If I go out he will make me get in the ute’;
Mother: ‘I can't help that, I need you to go because they will blame me if they don't';
Mother: ‘are you going to go out mate?'
X: ‘no – if the judge wants me to go he can come and make me';
Mother: ‘I'm not sure he would do that’.
Similarly, Y was required to negotiate herself with her father. This is not a discharge of the mother's positive obligations.
In all of those circumstances and again on the above authorities, I am not satisfied that this mother has done more than passively comply with the Court orders and, more importantly, delegate her responsibility to the children and the father. It is the mother who carries the responsibility and, like the first count, she does not discharge that responsibility by leaving ‘negotiations’ to the father and the children.
I do not find, therefore, that the mother has successfully raised a defence of 'reasonable excuse' in accordance with the settled authorities.
Conclusion
There will be findings that the mother has breached the relevant Court orders on two counts as set out in the Contravention application. I will now hear Counsel as to penalty.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 23 June 2020
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