G and B
[2007] FMCAfam 671
•11 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & B | [2007] FMCAfam 671 |
| FAMILY LAW – Contravention – reasonable excuse. |
| Family Law Act 1975, ss.70NB, 70NC, 70NE, 70NEB (as they then were) |
| Stevenson & Hughes (1993) FLC 92-363 Elspeth & Peter [2007] FamCA 254 (13 March 2007) |
| Applicant: | G |
| Respondent: | B |
| File Number: | SYM474 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 11 September 2007 |
REPRESENTATION
| Applicant: | Self Represented |
| Respondent: | Self Represented |
ORDERS
The Orders for R to spend time with the Father are hereby suspended.
R is to spend time with his Father as agreed between the Mother, Father and R.
The Mother is to use her best endeavours to encourage R to spend time with his Father.
Insofar as the contravention application relates to orders for R to spend time with his Father, such contraventions have not been established without reasonable excuse.
Insofar as the contravention application relates to failure to consult, such contravention has been established without reasonable excuse.
The parents are to continue to attend the Parenting After Separation course as previously ordered.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM474 of 2006
| JOHN G |
Applicant
And
| ANGELA B |
Respondent
REASONS FOR JUDGMENT
These reasons relate to the contravention application filed on 16 January 2007 by G, who I will refer to in these reasons as "the father". The respondent is B, who I will refer to as "the mother". The father and the mother married on 21 October 1989 and separated on 25 October 1995. There is one child of the marriage, R, born 29 January 1992. R is 15 and a half years old.
On 30 March 2000 the father and the mother entered into consent orders in the Family Court of Australia at Sydney. They agreed that R would live with the mother and spend defined time with his father each alternate weekend (from 2.55pm on Friday to 7.45am on Monday); for half of Christmas Day; for half of school holidays; and on various other special days.
Both the father and the mother represented themselves in the proceedings.
The father alleges contraventions of the orders, on four counts. The first and the third counts basically relate to breaches of the orders for R to spend time with his father. The second and fourth counts basically relate to failures to consult, which, the father alleges, is a breach of the order requiring both parties to have joint responsibility and consultation with each other for the long-term decisions concerning the welfare of R.
The mother admitted the contravention that related to R not spending time with his father, but asserted that she had a reasonable excuse for not complying with the orders. However, the mother denied the contravention of the orders insofar as they related to failure to consult.
The contravention proceedings are, in fact, one of three different applications filed by the father on 16 January 2007. On that date he also filed an application to vary the existing parenting orders relating to R. He also filed a child support departure application. Neither of those applications have yet been dealt with but there is a common substratum of facts that links all three applications - they all relate to a 15-year-old boy who, according to his mother, has expressed firm views about spending time with his father.
The evidence in this case consisted of the affidavit filed by the father in support of his contravention application, and an affidavit filed by the mother, being a composite affidavit providing evidence in response to all three applications of the father. In addition, both the father and the mother gave sworn evidence and had the opportunity to cross-examine each other.
Whilst the contravention application was filed on 16 January 2007, the dates on which the contraventions are alleged to have occurred are 11 March 2006, 22 March 2006, 11 March 2006 and 29 May 2006. This means that the application is governed by the provisions of Division 13A of Part VII of the Family Law Act in the form before it was amended as a result of the 1 July 2006 shared parental responsibility amendments to the Act.
There is no doubt that the consent order dated 30 March 2000 is an order within the definition of s.70NB. In s.70NC a contravention is deemed to have occurred where a person has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order. S.70NE contains a definition of reasonable excuse for contravening an order:-
70NE 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 (1A), (2), (3) and (4).
(1A) 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.
(1B) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (1A)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(3) A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The mother's argument about reasonable excuse is based on subsection (3) of s.70NE. In substance, as I understood the mother's evidence and her submissions to me, R had so clearly expressed his views against spending time with his father that, in her opinion, to have forced him to go would not have been in his best interests and, specifically, would have raised issues about his health and safety.
Section 70NEB gives me a power to vary the parenting order where a contravention without reasonable excuse has not been established.
During the course of the father's submissions to me, he submitted that there had been a prior contravention of the orders, but there was no evidence before me to establish that this was the case. Accordingly, I must proceed on the basis that this is a first contravention.
Dealing firstly with the contraventions that are admitted, save for reasonable excuse, these relate to R failing to spend time with his father.
In relation to the reasonable excuse, the mother's evidence is set out at pages 2, 3 and 4 of her affidavit filed 21 March 2007. This affidavit does not use paragraphs. In attempting to summarise the mother's evidence, it is to the effect that since March 2006 R has not wanted to spend time with his father because of problems he is experiencing whilst he is with his father and a poor relationship that he experiences with his father's new wife, Mrs G. According to the mother's evidence, and based on what the mother asserts R has said to her, there is a high level of conflict between R and Mrs G whenever they come into contact with each other. The mother became increasingly worried about R "as each time he would return from his father after a visit he would be withdrawn and moody". According to the mother, this culminated on Saturday, 11 March 2006 when, at approximately 2.00pm, R called her in a distressed state and said he had tried to run away from his father's but was caught by his father and dragged back to the house. The mother asserts that R said to her that Mrs G had told him to go and kill himself. The mother also asserts that on Saturday, 29 April 2006, R told her that he was on a pushbike ride with his friends and that he came across the father at W Mall. R told his mother he had a verbal argument with his father, that Mrs G grabbed R by the arm in an attempt to slap him, and R managed to get away. The matter was subsequently reported to the police by the mother, who also referred the incident to the Department of Community Services.
In short, the mother's evidence is that based on what R has said to her, his relationship with Mrs G is so strained that he does not wish to spend time with his father.
The father was obviously not able to set out evidence about what R may have said to his mother.
Mrs Kim G filed an affidavit in support of the father's application on 10 July 2007. At paragraph 3 of that affidavit she denies that she told R to commit suicide. She also has a different version about what transpired at W Mall. She asserts that R began swearing at her, and that she and the father walked away from R. She denies that she attempted to slap R.
At paragraph 7 of Mrs G's affidavit she states:
"Leading up to R's 14th birthday, his attitude towards me became distant and somewhat cold."
She also gives evidence of changes in R's behaviour towards his father.
Mrs G annexes to her affidavit the police record of the event at the Mall in Won 29 April 2006. In the statement that R gave to the police, it is recorded that he said words to the effect that his mother and father had been estranged for some time and up until recently there had been regular visitation. However, R is said to have stated that of late things have been made very uncomfortable for him and he no longer wishes to visit there. R records that at some time during the scene Mrs Kim G grabbed him by the arm and told him to stop carrying on. The record of the event also records what Mrs G said to the police. The police recorded that:
Most of the version mentioned has been the same but she has made it clear that the vic has been the aggressor in all things. She states there has been problems with visitation lately because the father has been applying for a reduction in child support. This has angered the mother who has exerted her influence on the vic resulting in the poor attitude he has started to form of his father.
I set out what appear to be the conclusions formed by the police:-
This is typical of custody situations and moneys involved in them. Police are unable to judge the full truth and motivations behind them. From a previous report involving the vic it appears he does tend to report the smallest of incidents. This would seem to be the result of conflicting opinions of discipline involving him.
At worst, the hand on the arm could be considered lawful chastisement, due to the very minor nature of it and the circumstances. The POI is not the natural mother but given the long association with the vic (six years) through his father, she could be considered a guardian or caregiver. In any event, she was informed by police this was probably not a wise thing to do given the current climate and as such should refrain from grabbing the POI in the future despite his poor behaviour.
At this point both parties were told a record only would be made.
The record of the incident that occurred in W Mall does give an insight into the very poor relationship that seems to exist between the mother and the father, Mrs G, and R. However, the record of the event also does create the impression that the police formed the view that Mrs G had, in fact, placed her hand on R's arm.
The evidence indicates that the relationship between R and his father, and his father's new wife Mrs G, is a strained one. Whilst the relationship was already strained by the time of the incident on 29 April, this incident certainly did not improve the relationship and probably contributed to a significant deterioration thereof.
I am unable to find whether the incident alleged on Saturday, 11 March by the mother did in fact occur. However, I accept that the totality of the evidence confirms the mother's evidence that R has expressed a view, supported by his behaviour, that he does not wish to see his father.
I accept, therefore, that R had expressed a view not to spend time with his father and was acting accordingly. Has the mother, however, failed to take reasonable steps to ensure that the child nonetheless spends time with the other parent? The Full Court of the Family Court in Stevenson v Hughes (1993) FLC 92-363 discussed a parent's obligation to take reasonable steps to ensure that an order made for a child to spend time with the other parent is effective. This authority was confirmed in the recent Full Court decision of Elspeth & Peter [2007] FamCA 254 (13 March 2007). At paragraph 25 of the Full Court's reasons for judgment, it was confirmed that Stevenson & Hughes continues to be the authority and that a parent's obligation is to ensure compliance with a parenting order in a positive, active sense, and not a passive sense. However, on the facts of this case, R is 15 years old. It is not appropriate to ignore the realities of R's age, and the developmental stage that he is going through. It is not realistic to impose the same obligation to be active on a parent of a 15-year-old to a parent of a 5-year-old. I am satisfied that the mother did all that could be done under the circumstances. In my opinion, viewed both objectively and subjectively, there was a reasonable excuse.
The other allegations related to a failure to consult. The first of these allegations was a failure to consult the father in relation to R attending counselling. The mother in her evidence explained that this counselling was to deal with the problems that R was experiencing with his relationship with his stepmother, Mrs G. She asserts that even if she had consulted the father, he would never have agreed to counselling in relation to a problem that he does not believe exists.
The second allegation of failure to consult relates to applying for an Australian passport for R. In this regard the mother's evidence is that she did attempt to consult, but the father was only prepared to agree on conditions which she found unacceptable. According to the father, the proceedings that the mother subsequently commenced to obtain an order for an Australian passport were unnecessary. I note that on 21 July 2006 Sexton FM made orders by consent dealing with the passport issue, including a number of conditions.
The requirement for parents to consult in relation to major decisions affecting their children is at the very heart of the Family Law Act. And yet it must be recognised that in some cases the level of acrimony between the parties is so high that consultation is unrealistic. Indeed, it is quite possible that in cases such as this, consultation exacerbates the conflict thus creating, ultimately, a situation that is worse for the child than if there were no consultation.
On the other hand, however, surely it would have been reasonable to expect the mother to have at least written to the father with the proposals.
I cannot ignore the factual matrix in this case. R is fifteen. His parents are involved in an intractable conflict. The requirement to consult is important, but not if it becomes a weapon for one parent to use against the other in their seemingly relentless quest to achieve an aim that is unknown to the Court. I am satisfied there is a breach, but the entire circumstances indicate that the failure to consult is, in the circumstances of this case, a breach falling into the less serious category. Were the parents not already attending a parenting course, that is the order I would have made.
Accordingly, in relation to the alleged contraventions involving R not spending time with his father, I find that such contraventions have not been established without reasonable excuse. In relation to the alleged contravention involving failure to consult, I find that the contraventions have been established and there is no reasonable excuse and the most appropriate penalty to impose is to require the parents to continue to attend the Parenting After Separation course that they are currently enrolled in.
I cannot ignore the other proceedings between the parents, or the findings that I have made in these proceedings. Specifically, I will suspend the existing Orders for R to spend time with his father, pending the outcome of the application to vary the existing orders. To do anything else would ignore the reality of the situation, R’s age, and the likelihood of further contravention applications.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 11 September 2007
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