French and Winter

[2016] FamCA 783

FAMILY COURT OF AUSTRALIA

FRENCH & WINTER [2016] FamCA 783

FAMILY LAW – CONTRAVENTION - OF PARENTING ORDER
FAMILY LAW – CONTRAVENTION - OF MONETARY ORDER

Family Law Act 1975 (Cth)
Evidence Act 1995

Winter & French [2013] FamCAFC 75
Winter & French [2014] FamCAFC 215

APPLICANT: Mr French

RESPONDENT: Ms Winter

FILE NUMBER: BRC 7013 of 2010

DATE DELIVERED: 15 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 March 2015;
16 April 2015

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr Roberts as town agent for Julie Singleton Lawyers

Orders

1. The Respondent has, pursuant to s 112AB of the Family Law Act 1975 (Cth), contravened Clause 1 of the Order, made by Federal Magistrate Demack on 3 December 2013, without reasonable excuse.

2. The Respondent has, on the occasions particularised in the Application-Contravention filed 15 October 2014 as occurring between 15 March 2014 and 29 April 2014 and as between 5 August 2014 and 10 August 2014 and pursuant to s 70NAC of the Family Law Act 1975 (Cth), contravened the Order made by Federal Magistrate Demack on 26 April 2012 without reasonable excuse.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym French & Winter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7013 of 2010

Mr French

Applicant

And

Ms Winter

Respondent

REASONS FOR JUDGMENT

1. There is a lengthy history of litigation between these parties about the care arrangements for their children:

   a)B (born in 2001 – being now 15 years old); and

   b)C (born in 2002 – being now 13 years old).

2. The current applications which require determination are two Contravention Applications filed by the Applicant: one alleges the Respondent contravened an Order requiring her to pay the Applicant’s costs fixed in a particular amount; the other alleges that the Applicant contravened a parenting order which prescribed the care arrangements for C.

Background

1. The parties were in a relationship between 1998 and November 2003. After separation the children remained in the primary care of the mother. For reasons which are the subject of dispute - and despite the terms of Orders made 13 December 2004 – they spent time with the Applicant in an inconsistent manner until the 2012 trial.

2. The 2012 trial followed an earlier hearing before Federal Magistrate Demack (as she then was) in August 2011.  At the conclusion of that hearing, the Court made orders by consent (on an interim basis) to facilitate an increase in the time each child was to spend with the Applicant and adjourned the matter, part heard.

3. After a further contested hearing on 15 December 2011, further interim orders were made to provide for the children’s time with the Applicant during the end of year school holiday period.  The final hearing was listed to recommence in April 2012.

4. After completing the trial, FM Demack made orders on 26 April 2012 that:

   a)the parents have equal shared parental responsibility for the children;

   b)the children live with the Applicant; and

   c)the children spend time with the Respondent each alternate weekend from after school Thursday until before school Monday, for half of the school holidays and on special days; and

   d)changeovers (which were not facilitated through the children’s school) occur at a public place nominated by the Applicant.

5. The April 2012 Order also contained what might be referred to as “standard orders” for the provision of information about the children to each parent.  Each parent was restrained from denigrating the other to, or in the presence of, the children. The April 2012 Order also provided a mechanism by which the Applicant might file submissions in respect of his costs and the Respondent might respond to the same.

6. The Respondent appealed the April 2012 Order. She also, unsuccessfully, sought to stay the operation of the same pending the determination of her appeal.

7. After the Applicant sought an order that the Respondent pay his costs of and incidental to her Application for a stay, her Honour made an order, on 30 August 2012, that the Respondent pay the Applicant’s costs (of the stay Application) fixed in the amount of $4,693.50.  The Respondent subsequently appealed the costs order.

8. The Full Court considered the Respondent’s appeals in relation to both the parenting orders and the costs order together.[1] The appeal against the parenting order was dismissed.

   [1]          Winter & French [2013] FamCAFC 75.

9. During the course of the appeal hearing, the Respondent adduced further evidence which she said established the Applicant had given false evidence during the hearing of the stay Application and that he had been charged with “giving false evidence”. On this basis – that is, that there was fresh evidence available which was not available at the hearing of the matter – the Full Court allowed the appeal in respect of the order determining the application for a stay and remitted the determination of the application for costs of the stay application to Demack FM for rehearing after the conclusion of the criminal proceedings pending against the father.

10. Judge Demack heard further submissions in relation to the issue of costs on 29 November 2013.  A consideration of her Honour’s Reasons for Judgment[2] establishes that the criminal charges arising from the allegation that the Applicant had given false evidence (which the Full Court was told were pending) had, in fact, come to nothing - there was no evidence before her Honour that the Applicant had engaged in any improper behaviour.[3] Her Honour also received evidence in relation to an asserted change in the Respondent’s financial position.

    [2] [2013] FCCA 2433.

    [3] Reasons for Judgment, at [20].

11. After the rehearing of the issue of costs (but before her Honour delivered judgment in relation to the same) the Respondent’s then solicitors sought, by way of correspondence directed to her Honour’s Chambers, to raise that the solicitors engaged by the Applicant had been removed from the Roll of Solicitors some time before the first costs order was made. They queried whether this affected their capacity to render an account. The Respondent’s solicitors declined the opportunity afforded them to seek an adjournment of the hearing of the costs application to enable them to adduce evidence about this issue.

12. On 3 December 2013, Judge Demack ordered that the Respondent pay the Applicant’s costs of the stay Application fixed in the amount of $4,693.50.  The Respondent sought to appeal this costs order.  However, she was out of time and her Application for an extension of time within which to file an appeal was dismissed.[4]

    [4]          Winter & French [2014] FamCAFC 215.

13. Meanwhile - while the appeals were pending – both parents filed an Application in a Case in the Federal Circuit Court. Those proceedings were later transferred to this Court, ostensibly because there were proceedings (the appeal) on foot here.

14. Additionally, each parent subsequently sought to vary the final orders.[5]

    [5]See the Applicant’s Initiating Application and Amended Initiating Application filed 2 August 2013, and the Respondent’s Response to the same.

15. On 1 September 2014, the Applicant filed the Application-Contravention in the Federal Circuit Court in respect of an alleged breach of the costs order.

16. On 3 October 2014, when the parties were before a Registrar, the Applicant indicated his intention to file a Notice of Discontinuance in respect of the whole of proceedings in the Family Court[6].  The Respondent indicated that, upon her receiving this, she would also discontinue her Application.

    [6]          Notation A, Orders made 3 October 2014.

17. On 15 October 2014, the Applicant filed the second Application-Contravention in the Federal Circuit Court in relation to alleged breaches of the parenting orders.

18. When the Contravention Applications came before Judge Demack on 16 December 2014, the Respondent took issue with the proper jurisdiction of the Federal Circuit Court to hear this matter given that there were current proceedings on foot in the Family Court.

19. Despite not accepting the Respondent’s submission that she did not have jurisdiction to hear the matter, her Honour transferred the Contravention Applications to this Court.

Contravention of the Costs Order[7]

[7]          Application - Contravention, filed 1 September 2014

1. The Application – Contravention (filed 1 September 2014) alleges that, contrary to Judge Demack’s Order of 3 December 2013 and without reasonable excuse, the Respondent failed to pay the Applicant’s costs in the sum of $4,693.50.

2. The December 2013 Order, relevantly provided:

   That the mother pay the father’s costs with respect to the stay application fixed in the sum of four thousand, six hundred and ninety three dollars and fifty cents ($4,693.50) with such sum to be paid within six (6) months of the date of these Orders and thereafter interest shall accrue at the applicable Family Law rate.

3. The Respondent was, therefore, required to pay $4,693.50 by 3 June 2014 - after which time, interest was to accrue.

   Has the Respondent contravened the Order?

4. The Respondent will have contravened the December 2013 Order if, and only if, she has intentionally failed to comply with the Order or made no reasonable attempt to comply with it.[8]

   [8] Section 112AB, Family Law Act 1975 (Cth).

5. The Respondent accepts that she has not paid the costs as ordered. However, she asserts that she has not contravened the December 2013 Order because:

   a)the use of contravention proceedings, in circumstances where there are enforcement procedures available to a party under the Rules and the value of the money sought to be paid is “small”, is inappropriate; and/or

   b)she made a reasonable attempt to comply with the Order.

   The appropriateness of contravention proceedings

6. I do not accept that simply because the Rules provide a mechanism to enforce a costs order (which does not carry with it “punitive and potentially serious penalties and consequences”), it is “inappropriate and excessive” for the Applicant to bring contravention proceedings or that it is proper to dismiss his application on this basis.

   Reasonable attempt to comply with orders

7. On 27 March 2014, the Applicant sent to the Respondent an email in which he noted: “The existing cost order handed down by FM Demack is due on the 3^rd June 2014.  Please take this as just over three months till due date and I intend to I force [sic] the order and interest if not paid”.[9]

   [9]          Exhibit 3.

8. On 25 July 2014, the Applicant emailed the Respondent’s solicitors.  He asserted she “is in contempt of an order made by Judge Demack to pay to me the sum of $5,000.00, by way of costs. Not only has your client failed to address this matter, but she has ignored my correspondence in relation to same”.[10]

   [10]         Respondent’s affidavit filed 13 October 2014 at Annexure LW3.

9. Whilst the Respondent disputes the assertion that she ignored the Applicant’s correspondences (she says that he had not corresponded with her in relation to this issue), it must not be forgotten that she is the party upon whom the obligation to pay rests. 

10. On 31 July 2014 - nearly two months after she was required to pay the Applicant pursuant to the Court order - the Respondent emailed him that she was not “financially able” to pay the costs in total immediately but would commence making weekly part payments into his bank account directly until such time as the outstanding amount was paid.[11] A further email sent on 18 August 2014 repeated the text of that sent on 31 July 2014. The Respondent says she received no response to either piece of correspondence.  She says she has made numerous attempts to negotiate a payment plan. 

    [11]         Respondent’s affidavit filed 13 October 2014, at Annexure LW2.

11. Whatever the attempts to negotiate, the fact remains that the Respondent did not pay the Applicant the amount required by the December 2013 Order by the date ordered for payment. As at the date of hearing she had not made any payment to him at all. I do not accept that any failure by him to provide bank details removes from the Respondent the obligation to pay the amount ordered. She could, for example, have simply obtained a bank cheque and provided the same to him.

12. In these circumstances, I am not persuaded the Respondent made a reasonable attempt to comply with the Order.

13. Consequently, I am persuaded that the Respondent has contravened the December 2013 Order.  That being the case, I am now required to consider whether the Respondent has established she had a reasonable excuse for such contravention. 

    Does the Respondent have a reasonable excuse[12]

    [12] Section 112AC, Family Law Act 1975 (Cth).

14. There is no suggestion by the Respondent that, at the time of the contravention, she did not understand the obligations imposed on her by the December 2013 Order.

15. However, she submits that the Court will be satisfied she ought be excused in respect of the contravention (being her failure to pay the sum ordered) because:[13]

    a)her financial position is “extremely weak”; and

    b)the order is “unjust and based on evidence falsely sworn”; and

    c)the Order fails to consider that the Applicant’s solicitor/s were struck off and, therefore, unable to render an account; and

    d)she paid “the Applicant’s half” of the children’s school fees - which she says exceed the amount to which he is entitled pursuant to these orders.

    [13] Respondent’s affidavit filed 8 October 2014 at [8].

16. It is relevant to record that Judge Demack had regard to all but the last of these assertions when she determined to make the December 2013 Order.

17. Whilst the Respondent’s taxable income for the financial years ended 30 June 2013 and 30 June 2014 was $26,269.00 and $33,870.00 respectively, such level of income does not lead inexorably to a conclusion that the Respondent had a reasonable excuse for failing to pay the costs she was ordered to pay.

18. In the absence of written agreement between the parties that the Respondent was permitted to set off against her liability to pay the Applicant’s costs as ordered against any asserted liability the Applicant has in respect of the children’s school fees, I am not persuaded that the Respondent has established a reasonable excuse for failing to comply with the terms of the December 2013 Order on this basis.

19. I also note that there is no order which requires the Applicant to pay half of the children’s school fees.

20. The Respondent’s solicitor submitted that the Court would conclude that the Respondent has established a reasonable excuse for not paying the Applicant the amount ordered because he has not established that he in fact paid his solicitors that amount. The Applicant accepted he had not produced evidence to establish that he had in fact paid his legal representatives such amount. He simply submitted that Demack FM would not have made the order she did if she had not been satisfied that he had paid – or been required to pay – legal costs for his legal representatives in the amount ordered.

21. Given the matters outlined at paragraph 13, the relevant terms of the December 2013 Order and that it remains in force and the state of the evidence before me, I am not persuaded that the Respondent has discharged the onus of establishing that she had a reasonable excuse for failing to pay the Applicant the costs she has been ordered to pay to him.

22. In all of the circumstances, I consider the Respondent contravened Clause 1 of the Order made by Judge Demack on 3 December 2013 by failing to pay to the Applicant his costs in an amount of $4,693.50 as ordered and that she did so without reasonable excuse.

The Contravention of the Parenting Order[14]

[14]         Application- Contravention filed 15 October 2014

The Respondent’s application for summary dismissal of the Application

1. When the parties first appeared on 24 March 2015, Mr Roberts (the Respondent’s solicitor) submitted I ought to dismiss the Applicant’s Contravention Application on the basis that the Application and affidavit filed in support did “not meet the current standards”, failed to sufficiently plead the Applicant’s case and that there was no evidence to support a conclusion of an intentional failure to comply with the orders or a failure to make a reasonable attempt to comply.

2. As my exchange with Mr Roberts and the reasons delivered orally make plain, I considered there was at least a prima facie basis on which I might find the Respondent had contravened the orders.

Did the Respondent contravene the April 2012 Orders?

1. The Order made on 26 April 2012 provided that the children live with the Applicant and spend time with the Respondent. The father’s application, in essence, is that, in contravention of this order, C was not living with him on the days and for the period he particularises in his application.

2. It is not in dispute that C was not living with her father on the days particularised in his application. It is also not in dispute that, save for time at Christmas and in late 2014 for her birthday, C was with and/or in the mother’s care and living with her between 15 March 2014 and 18 May 2014 and between 5 August 2014 and 2 March 2015 (noting that the father’s application was filed on 15 October 2014).

3. What is in dispute is whether the mother contravened the order. She will have done so if, and only if, she intentionally failed to comply with it or made no reasonable attempt to comply with it.[15] The father says this is the case. The mother says that this is not the case and that C simply travelled to her home each afternoon after school and refused to return to her father’s care. The mother also contends that, as she sent the father a text to tell him that C was in her care and that he could come to collect her, she made a reasonable attempt to comply with the Order.

   [15] s 70NAC Family Law Act 1975 (Cth).

4. The Respondent also asserts that she tried to return C to the Applicant’s care but the child refused to go, “or subsequently returned to me.” As noted, she says that C travelled, of her own volition, to her mother’s home - either from school or from the Applicant’s house.

5. It is accepted that C returned to her father’s care on 18 May 2014 and remained there until 5 August 2014. It is also accepted that, after this, she remained in her mother’s care. What is in dispute is whether this was as a result of the mother’s retention or failure to return her to the father’s care or because the child refused to return.

6. It is clear that the Respondent sent the Applicant a number of texts to alert him to the fact that C was at her home during times she was supposed to be in his care according to the Order. For example, after the child had not returned to her father’s care on 13 April 2014, the mother sent him a text to say that C was still upset and unsettled and refused to go and that she would insist she (C) call him when she got home from work. The father’s response – consistently- was to tell the mother that she was required to comply with the order which required her to deliver C to his home and that if she did not, he would institute proceedings seeking compliance.

7. The mother’s response was that she had complied with the orders because she took C to his home but the child refused to get out of the car and, despite her encouragement, refused to leave with him. The mother also suggested that he travel to her home to collect C from there because she could not take the child to him because she had the obligation to care for her younger child: something he refused to do because it was not provided for by the Order.

1. The mother’s case certainly involves the proposition that she has been reasonable and co-operative because she continued to suggest to the father that he travel to her home after school to collect C from there as she continued to catch the bus there rather than travel to his home (where she was supposed to be  in accordance with the Order).

2. The father’s case is clearly that the obligation to return C to him was cast on the mother by the order which required the child to live with him. He submitted, and I accept, that, on occasions when it suited the mother, she was able to cause C to return to his care and that she simply did not make enough effort to do so during the relevant periods.

3. On 29 April 2014 the father sent the mother a text message. In this he outlined that he had unsuccessfully sought to encourage C to come with him after school on several occasions. He told the mother that, as of today, she was to ensure that she collected C after school and that he would be seeking a recovery order to ‘enable’ the child to come back into his care.

4. I am not persuaded that this communication from the father amounted to a variation of the Order. His reference to an intention to seek a recovery order makes this unequivocally clear. However, I do accept that he directed the mother to collect C after school until he sought a recovery order.

5. Whilst the father did not in fact seek a recovery order, it is agreed that C returned to his care on 18 May 2014.

6. On 5 August 2014, C travelled by bus to her mother’s home again after school. This happened after the father had told the mother (on 1 August 2014) that he would not agree to the children spending any additional time with their mother. The mother sent the father a text to tell him that C was there. The father subsequently told the mother that he would leave the child there for the night.

7. I do not accept any contention that, by sending such a message to the mother that evening, the father agreed to a variation of the Order such that C live with her mother after that day.

8. The mother said, in essence, that she did not know from day to day after 5 August 2014 whether C was going to turn up at her home after school each day. I do not accept this evidence because I accept that the Department of Human Services, Child Support was told – by the mother - that, from 5 August 2014, the father had zero per cent care of C.

9. It is clear that when, as here, there is an order in force in relation to a child to the extent to which the order deals with whom the child is to live, a person must not, contrary to the order, refuse or fail to deliver or return the child to a person.[16] That is, the mother had the obligation to return C to her father.

   [16]         s 65M(2)(b) of the Act.

10. On occasions, she failed to do so.

11. I do not accept that, by simply leaving it up to C to determine whether she wished to return to her father’s home or continue to catch the bus to her mother’s home, the mother made a reasonable attempt to comply with the Order. After all, as the mother accepted during her cross-examination, when she (the mother) wanted C to leave her home, she was able to immediately put that desire into effect.

12. I am not persuaded that in informing the father that C had gone to her home rather than his, the Respondent made a reasonable attempt to comply with the Order. I consider sending information about where C was insufficient to constitute a reasonable attempt to comply with the terms of the April 2012 Order.

13. Accordingly, I have concluded that, on the occasions particularised by the Applicant as occurring between 15 March 2014 and 29 April 2014 and as between 5 August 2014 and 10 August 2014, the Respondent contravened the terms of the April 2012 which required that the child C live with him.

Did the Respondent have a reasonable excuse for contravening the Order?

1. The Respondent bears the onus of establishing, on the balance of probabilities,[17] that she has a reasonable excuse[18] for contravening the Order on the occasions I have found this to have occurred.

   [17]         s 70NAF(2) of the Act

   [18]         s 70NAE of the Act

2. I am not persuaded she has discharged this onus. I do not accept that she had a reasonable excuse for failing to deliver C to her father’s care as required by the Order. I do not accept that she was unable to ensure that C returned to her father or that she was, in essence, powerless to ensure that this occurred – after all, as already noted, the mother was clearly able to ensure C left her care when she wanted the child to leave.

What orders should be made as a consequence of the findings reached?

1. Whilst the father sought that the mother’s time with C be decreased until the time the child was absent from his care was made-up, I am not persuaded that such an order is in the child’s best interests. Recourse to the tortured history of litigation between her parents and the consequences for her of decisions made by both of them about her time with each of them easily persuades me that further disruption to her care arrangements should, if at all possible, be further minimised.

2. I am also not persuaded that there is likely to be any utility in making an order that requires the mother to enter into a bond. The findings expressed in these Reasons will be available in the event that there are any further proceedings between these parties about the terms of the existing operative Order.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 September 2016.

Associate:                 

Date:    15 September 2016