GARCIA & VIBBARD
[2012] FMCAfam 1413
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARCIA & VIBBARD | [2012] FMCAfam 1413 |
| FAMILY LAW – Children – parenting orders – contravention – contravention of parenting orders – whether contravention established – prima facie case. REASONABLE EXCUSE – Whether respondent established a reasonable excuse for the contraventions – where parties entered into consent orders – where both parties were legally represented. EVIDENCE – Privilege – client legal privilege. EVIDENCE – Whether evidence about settlement negotiations may be adduced – where the making of an agreement between the parties is an issue in the proceeding between the parties – evidence held admissible as an exception under Evidence Act 1995 (Cth) s.131 (2)(f). CONSENT ORDERS – Draft Consent Orders must comply with Rule 13.04 – orders must be clear, understandable and enforceable – orders must state with precision what has been agreed – obligations on lawyers in preparing consent orders. |
| Evidence Act 1995 (Cth) ss.117, 118, 119, 131 Family Law Act 1975 (Cth), ss.69ZT, 70NAE, 70NEA Federal Magistrates Court Rules 2001 r.13.04 |
| Applicant: | MR GARCIA |
| Respondent: | MS VIBBARD |
| File Number: | SYC 4350 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 7, 12,17 & 19 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Solicitor for the Respondent: | Mr Holmes on 7, 12, 17 December, Mr Moyes on 19 December 2012 |
| Solicitors for the Respondent: | KDB Holmes Solicitors |
ORDERS
Count 1 of the Application filed on 21 November 2012 alleging that the Respondent did on 31 August 2012 without reasonable excuse contravene Order 9 made on 6 August 2012 by refusing to return the passport of the child [X] to the Applicant’s solicitor is dismissed.
The Respondent did on 9 October 2012 without reasonable excuse contravene Order 11 made on 6 August 2012 by refusing to do all acts and things necessary to cause the passport of the child [X] to be delivered and made available to the Applicant.
Count 3 of the Application filed on 21 November 2012 alleging that the Respondent did on an unspecified date contravene Order 3 of Parenting Orders made by consent in the Family Court of Australia at Sydney in proceeding No. SY 3374 of 2002 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Garcia & Vibbard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4350 of 2012
| MR GARCIA |
Applicant
And
| MS VIBBARD |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of the parties’ eleven-year old son [X] to deal with the mother for three contraventions of consent orders made by the Family Court on 24th April 2002 and by this Court on 6 August 2012. A fourth contravention claim was not pressed.
The Respondent mother denies that she contravened the orders. The solicitor[1] who acted for her on 6th August and drafted the orders on that day has prudently referred the matter to another solicitor, Mr Holmes.
[1] The Solicitor’s name is not published
The Orders said to have been contravened are Orders 9 and 11 of the Orders made on 6th August 2012 and Order 3 of the Orders made on 24th April 2002.
Order 9 made by consent on 6th August 2012 states:
That following the mother’s return with [X] from the overseas holiday under Order 1 above the father’s solicitor, Mr A[2] is to hold [X]’s passport in escrow pending the next occasion of overseas travel that is undertaken by the child with either parent in accordance with orders 10 to 12 below.
[2] This solicitor’s name is also not published
Order 11 made on 6th August states:
That upon written notice being given by the father to the mother or the mother to the father pursuant to Order 10 above, the parent receiving such notice shall, within 10 days from the date of receipt of the said notice, sign all documents and do all acts and things necessary to cause the child’s Passport to be delivered or to be processed and made available to the other parent including, if relevant, signing any necessary Passport application and consent forms and providing the child’s birth certificate and any other associated documents required, if the child’s Passport and associated documents are in his or her possession.
Order 3 made of the parenting Orders made in the Family Court on 24th April 2002 provides simply:
The parties have joint parental responsibility in consultation with each other got the long term care, welfare and development of the child.
The Contraventions Alleged
By his Application filed on 21st November 2012, the Applicant complains that the Respondent contravened Order 9 of 6th August 2012 on 31st August 2012, contravened Order 11 of 6th August 2012 on 10th September 2012, and Order 3 of the Orders of 24th April 2002 on an unspecified date.
The first count claims that the Respondent contravened Order 9 at 5:00pm on 31st August 2012 at [address omitted] in that:
The respondent without reasonable excuse refused to return the child [X]’s passport to the father’s solicitor.
The second count claims that the Respondent contravened Order 11 of the Orders of 6th August at 5:00pm on 10th September 2012 at [address omitted] in that:
The respondent without reasonable excuse refused to do all acts and things necessary to cause the child [X]’s Passport to be delivered and made available to the other parent for the purchase of the airline ticket, after receiving the written notice of the intended trip’s reservation.
The third count claims that the Respondent contravened Order 3 of the consent Orders of 24th August 2002 at an unspecified time on an unspecified date and place in that:
The respondent without consultation enrolled my son in a school which is 20 kilometres away from my place of residence.
Evidence
The Applicant relies on his affidavit sworn on 20th November 2012. In that affidavit the Applicant describes how the parties had reached agreement at Court on 6th August 2012 and he signed a Minute of Proposed Consent Orders. He asserted that the Respondent had refused to return the child’s passport to his then lawyer, Mr A. He deposed that on 7th August 2012 he sent to the Respondent written notice of his intention to travel to Argentina with his son. Mr A sent an email to the Respondent’s lawyer on 9th September 2012 enquiring about the passport. The Respondent’s lawyer wrote on 9th October 2012 accusing him of misleading and deceptive conduct. A copy of that letter is annexed to the Applicant’s affidavit.
The Applicant deposed that the Respondent without consultation enrolled the child at a secondary school in [omitted], which is 20 kilometres away from the Applicant’s place of residence. The Applicant deposed that he and his current partner had discussed sending the child to [omitted] High School, as both the Applicant and the Respondent reside within the catchment area for that school.
The Applicant stated that in May 2012 he and the Respondent had started to attend the family dispute resolution service regarding the question of the child’s schooling. They had a date for mediation on 4th December. He expressed the view that the Orders of 24th April 2002 no longer reflected the current arrangements for the child.
The Applicant believes that [omitted] High School, which is only 3 kilometres from the Applicant’s home, is the most suitable school for the child. A number of the child’s friends already attend that school.
Whether a Prima Facie Case has been made out
The Respondent’s solicitor, Mr Holmes, submitted that the Applicant had not made out a prima facie case in respect of the three allegations. As the applicant is unrepresented, the concept of a prima facie case, as in a case to answer, was briefly explained to him.
A number of objections were taken to parts of the Applicant’s affidavit, mainly on the grounds of relevance. There was no application to cross-examine the Applicant on what remained of his affidavit.
Mr Holmes submitted that, in respect of the allegations of the contraventions of Order 9 and 11 of 6th August 2012, there were several reasons why there was no case to answer. He submitted that:
a)The Orders are incapable of clear understanding as to which Order applies, because Order 9 is contradicted by Order 12;
b)There is no evidence that the Respondent refused to return the passport;
c)Orders 9 and 12 are not orders in personam as they do not require any person to do anything;
d)The application is misconceived and the proper application might be for an order that the Respondent deliver up the child’s passport; and
e)As the Applicant is currently unrepresented, he had not established that Mr A is his solicitor.
Consequently, it was submitted that there was no evidence of a breach of Orders 9 and 11.
As to the allegation of a contravention of Order 3 made on 24th April 2002, it was submitted that Order 3 just provides for the parties to have joint parental responsibility for the child. It cannot be the subject of a finding that the Respondent has prima facie contravened that Order.
The Applicant, unsurprisingly, confined his submission to a review of factual matters. He referred to the letter of 9th October 2012 from the Respondent’s former solicitor to [omitted] Associates (Mr A’s firm), which he submitted constituted evidence of the Respondent’s refusal to make the passport available.
Prima Facie Case
The submission of the Respondent’s solicitor that no prima facie case has been made out in respect of the allegation of a contravention of Order 3 of 24th April 2002 must be accepted. True it is that the order provides for the parties to have “joint parental responsibility in consultation with each other for the long term care, welfare and development of the child”, but an assertion that the child was enrolled in a school 20 kilometres from the Applicant’s home cannot constitute a contravention of that Order.
It may well be necessary for the Applicant to bring an Application to vary the consent Orders of 24th April 2002.
Count 3 alleging a contravention of Order 3 of 24th April 2002 will be dismissed.
Turning to the allegations of contraventions of Orders 9 and 11 of 6 August 2012, the situation is somewhat different. It certainly appears that Order 9 may be contradicted by Order 12, but it is possible to interpret the Orders in such a way as to identify what the drafter had in mind. That said, the drafting of the Orders is unfortunate and does not make for easy understanding.
The Orders need to be read in context as an aid to understanding. Orders 5 to 8 inclusive deal with what was then the immediately pressing issue of the Respondent’s wish to take the child overseas for a holiday. Order 9 then deals with what was to happen after the mother returned to Australia with the child. Orders 10 to 12 inclusive were to follow on from Order 9.
Read in this way, there is no contradiction. Order 9 provides that the Applicant’s solicitor, Mr A, was to hold the child’s passport until a situation envisaged by Orders 10 and 11 eventuated, namely a further trip out of Australia by one or other party with the child.
Contrary to the Respondent’s submission, there is evidence of her refusal to deliver the child’s passport to the Applicant’s solicitor. It is contained in the Respondent’s solicitor’s letter of 9 October 2012.
The Respondent submits that Orders 9 and 12 are not orders in personam, as they do not require anyone to do anything. Order 12 need not be considered, as there is no allegation that it has been contravened.
Read in context, Order 9 does impose a requirement on the Respondent. Under Order 5, the Applicant was required to deliver the child’s passport to the Respondent for the purpose of the contemplated overseas holiday. Thus, when the mother returns from overseas, Order 9 requires that Mr A should hold the child’s passport until the next occasion of overseas travel, which is contemplated by Order 10 and 11. It is clear that the only way that Mr A could obtain possession of the passport is for the mother to deliver it to him.
The Respondent submits that the proper application should perhaps have been an application for an order to deliver up the passport, as contemplated by the letter of the Respondent’s former solicitor of 9 October 2012:
We are holding the child’s Passport in safe custody and are instructed to do so pending agreement between the parties or as determined by the Court.
If a contravention relating to the passport is found at the conclusion of the hearing, the Court would have power to make an order relating to the passport.
The submission that the Applicant has not established that Mr A is his solicitor is rejected. The consent Orders clearly show that Mr A appeared for the Applicant on 6 August 2012 and order 9 specifically refers to “the father’s solicitor, Mr A…”. The fact that the Applicant has chosen not to instruct Mr A or any other solicitor to act for him in respect of this Application is irrelevant.
As to order 11, the Applicant has provided evidence of having giving written notice to the Respondent, thereby enlivening his rights under Order 10 and, in consequence, Order 11. It is clear that Order 11 is an order in personam, as it requires “the parent receiving such notice…to sign all such documents and do all acts and things necessary to cause the child’s Passport to be delivered or to be processed and made available to the other parent”.
The Applicant has made out a prima facie case that the Respondent has contravened Orders 9 and 11. Should the Respondent seek to establish that she had a reasonable excuse for any contravention, it is incumbent upon her to prove that excuse (s.70NEA(1)(c)).
An order was made dismissing the third count, the allegation of a contravention of Order 3 of 24 April 2002.
Consideration
On the resumed hearing, Mr Holmes told the Court that he would be relying on three documents:
a)the affidavit of the Respondent’s former solicitor affirmed on 6 December 2012;
b)the affidavit of the Respondent affirmed on 12 December 2012 and filed in court that day; and
c)a handwritten document entitled “Proof of Evidence” setting out the substance of what the Applicant’s former solicitor, Mr A would say if he were to give evidence.
Mr Holmes explained that a subpoena had been issued to Mr A, requiring him to attend Court and give evidence. The document entitled “Proof of Evidence” had been prepared by Mr Holmes on the basis of a telephone conversation that he had with Mr A.
It was agreed between the parties that the deponents to the affidavits and Mr A would not be required for cross-examination. The Applicant did not object to the tender of the affidavit of the Respondent, nor did he object to anything in that affidavit.
However, the Applicant objected to the proof of evidence of Mr A on the ground of privilege, as the document tended to give details of confidential communications between him and Mr A, the solicitor who was acting for him at the time. This objection was upheld.
The Applicant objected to the affidavit of the Respondent’s former solicitor, Mr L, as to relevance and also under s.131 of the Evidence Act 1995, as the affidavit dealt with settlement negotiations between his then solicitor and the Respondent’s former solicitor.
The objection as to parts of the affidavit on the grounds of relevance was upheld, but a decision was made to admit those paragraphs of the affidavit that dealt with settlement negotiations under s.131(2)(f) of the Evidence Act.
Evidence in Contravention Proceedings
Applications to deal with a person for contravening a parenting order are found in Division 13A of Part VII of the Family Law Act. Consequently, evidence in contravention proceedings is covered by section 69ZT of the Act, which provides in subsection (1) that certain provisions of the Evidence Act 1995 do not apply to child-related proceedings, including:
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
However, Part 3.10 of the Evidence Act is not excluded by s.69ZT(1). Part 3.10 deals with privileges, two of which are relevant to this matter:
a)Client legal privilege; and
b)Evidence of settlement negotiations.
Client legal privilege can be found in Division 1 of Part 3.10.
Section 117 contains a number of helpful definitions, including the definitions of “client”, “confidential communication” and “lawyer”.
Section 118 of the Act provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 provides that:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in the disclosure of:
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Evidence of settlement negotiations is also found in Part 3.10 of the Evidence Act. Section 131 sets out the general principle in subsection (1), but there are a number of exceptions, which are found in subsection (2).
Subsection (1) provides:
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
Whilst subsection (2) contains a number of exceptions, in paragraphs (a) to (k), the only paragraph that is in my view relevant to the matter currently before the court is paragraph (f), which provides:
(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue.
Conclusions
The document entitled “Proof of Evidence” to which objection was taken is a précis of a telephone discussion between the Respondent’s current solicitor, Mr Holmes, and Mr A, the solicitor who was acting for the Applicant at the time. Paragraphs 2 to 4 of that document go directly to matters covered by s.119 of the Evidence Act, being:
a)A question asked by the Respondent’s then solicitor, Mr L, of Mr A;
b)The question being put to the Applicant and his reply; and
c)That information being conveyed by Mr A to Mr L.
The Applicant has objected to this evidence being adduced. The matters in those paragraphs clearly relate to client legal privilege and are therefore inadmissible.
It is surprising that Mr A divulged this information to Mr Holmes in their conversation.
Paragraphs 11 to 23 of Mr L’s affidavit deal at some length with confidential discussions between Mr L and Mr A at this Court on 6th August 2012, when the Respondent’s Application to take the parties’ child for a holiday out of Australia. These discussions led to the preparation of a Minute of Consent Orders and those Orders were made by the Court later in the day.
Again, objection has been taken to this evidence on the basis that it is evidence of settlement negotiations. It was submitted by Mr Holmes for the Respondent that the evidence ought to be admitted under paragraph 131(2)(f) of the Evidence Act, because the evidence is sought to be adduced in a proceeding to enforce an agreement between the parties in dispute to settle the dispute.
The evidence has been admitted on that basis.
The substance of Mr L’s affidavit evidence is that:
·The Applicant sought to settle the matter on a final basis, even though that meant that the orders made in 2002 that the child’s contact with the father was to be as agreed between the parties would stand.
·The Respondent was prepared to leave the question of defining the Applicant’s time with the child until the parties could discuss it at Family Dispute Resolution, which she had already initiated.
·Mr L said that if agreement could be reached about his client’s wish to take the child overseas for a holiday then agreement could be reached for final orders that day.
·A draft document was prepared by Mr L and shown to the Applicant by his solicitor.
·There were then discussions about the amount of surety which the Respondent could provide to cover her proposed overseas holiday with the child.
·Mr L sought further instructions and then asked Mr A “Is your client planning an overseas trip with the child at the end of this year during the long school holidays? My client wants to know because she has not spent the whole of Christmas with the child for 3 years, your client took him overseas during the 2010 Christmas school holidays and last year (the child) spent Christmas Eve with your client.”
·Mr A obtained instructions and returned, saying He has no plans to go overseas with the child during the next Christmas school holidays”.
·Mr L then replied “Okay, because it would be a problem if he wanted to take a 6 week holiday with the child this year. If he wanted to have an overseas holiday with the child this Christmas we would have to talk it through because (the child) is spending this Christmas with my client”.
·Mr A said “No, he’s said he’s not planning on taking the child overseas this December or next January”.
·Mr L said words to the effect of “In that case we can insert the words ‘of up to 6 weeks duration’ in that order and leave the rest of that order as it is on the understanding that any overseas holiday that your client has will not be until next year at the earliest. It seems we have an agreement do we?”
·Mr A said “I think so. I would like to run through all of the orders with him”.
·Mr L arranged for the document to be prepared.
·When the Applicant had read the document, Mr A told Mr L that his instructions were that his client wanted Mr A’s firm to hold the child’s passport after the child returned from the overseas holiday with the Respondent, the settlement nearly broke down.
·Mr L obtained instructions and told Mr A “The reality is that after this holiday that our client has with (the child), your client will probably travel overseas next with the child, whenever that may be. Your client doesn’t have any trust towards my client so she has no difficulty with you holding the Passport as custodian while you remain his solicitor so that he doesn’t worry about her doing to him what he has done to her with these proceedings Then for subsequent holidays the Passport can be held by whichever parent last travelled as the draft order reads.”
·Mr A obtained instructions and returned, saying “Yes, we are in agreement.”
Mr L then deposes in his affidavit at paragraph [23]:
I again contacted my office and arranged for the final form of the orders to be faxed to me at Court. It was dated and signed by the parties and each of their solicitors and in annexure “H”. The matter was again mentioned before Federal Magistrate Scarlett and His Honour made the orders by consent before the lunch adjournment.”
The Respondent deposed in her affidavit sworn on 12 December 2012:
6. I entered into the Orders of 6 August 2012 on the clear understanding and representation communicated to me via the Applicant’s then legal representative that the Applicant had no plans, whatsoever, to take (the child) overseas this year.
7. The time that (the child) is to spend with the Applicant remains as it always has been, to be agreed, in other words no specificity.
8. I am happy for whoever is truly independent of the Applicant and myself to hold (the child’s) Passport pending whichever parent takes (the child) overseas later in 2013.
9. I relied upon the representation of Mr (A) made to me at Court that in effect (the child) would be spending the Christmas holidays primarily with me.[3]
[3] Affidavit of Ms Vibbard 12.12.2012 at paragraphs [6]-[9]
It is on this basis that the Respondent claims that she has a reasonable excuse for any contravention of the Orders of 6th August 2012 by not providing the child’s passport to the Applicant’s then solicitor.
Whether the Contraventions are established
A prima facia case was found that the Respondent had contravened Orders 9 and 11 of 6th August 2012.
However, in respect of the first Count, I am not satisfied that the contravention has been established to the necessary evidentiary standard. Count 1 claims that the Respondent contravened Order 9 on 31st August 2012 in that she “refused to return” the child’s passport to the Applicant’s solicitor.
The evidence in support of this first allegation was set out in paragraphs [10] to [29] of the Applicant’s affidavit under the headings;
Detail of the contraventions
Breach alleged 1
Most of the paragraphs of the affidavit going to that alleged contravention were held to be inadmissible as irrelevant. Paragraph [10] contains an assertion that the Respondent refused to return the passport to the Applicant’s solicitor. Paragraph [28] refers to the agreement and the consent orders made on 6 August 2012.
However, there is no evidence of a refusal by the Respondent to return the passport on 31st August 2012, or any date near there. As that is an essential part of the claim, the lack of evidence is fatal and the contravention has not been made out.
Accordingly, Count 1 will be dismissed.
There is evidence going to the second Count, alleging that the Respondent refused to do all acts and things necessary to cause the child’s passport to be delivered to the Applicant’s solicitor and made available to the Applicant, once the Respondent had received written notice of the Applicant’s planned trip away with the child, in contravention of Order 11.
On 7th August 2012, the day after the Court proceedings, the Applicant sent the Respondent an email setting details of the child’s “reservations for our trip to Argentina end of this year”.[4]
[4] Affidavit of Mr Garcia 20.11.2012 Annexure “I”
On 24th September 2012 the Applicant sent a further email to the Respondent, headed “Argentina Trip Dec 2012”, in which he set out details of the planned holiday.[5]
[5] Ibid
The Applicant’s then solicitor, Mr A, sent an email to the Respondent’s then solicitor, Mr L, on 9th September 2012, asking him for the passport.[6]
[6] Ibid Annexure “J”
On 9th October 2012 Mr L wrote to Mr A, saying:
We are holding the child’s Passport in safe custody and are instructed to do so pending agreement between the parties as determined by the Court. Our client is not prepared for Mr A… to be the custodian of the Passport in circumstances where her consent to the final form of the Orders made by consent on 6 August 2012 was obtained by the father’s misleading and deceptive conduct. You will recall that during the confidential negotiations leading up to the agreement between the parties in relation to the consent orders that the writer expressly asked whether your client had any plans to travel overseas with the child during the Christmas school holidays. At the end of this year….Mr A then informed the writer that his client had no plans to travel overseas with the child during the next Christmas school holiday period.[7]
[7] Affidavit of Mr Garcia 20.11.2012 Annexure “K”
It is incumbent on the Respondent to prove that she had a reasonable excuse for the contravention (Family Law Act, s.70NEA(2)(c)). Her case is that she had entered into negotiations with the Applicant to resolve the matter in reliance on his assurance that it was not his intention to take the child overseas for a holiday during the December/January school holidays commencing in December 2012.
This may well be so. However, if that were the case, why was this express condition not written into the Minutes of Consent Order prepared by her solicitor?
It may well be argued that the Applicant was deceptive in his behaviour or was, at best, opportunistic in his plan to take the child away on a holiday in Argentina, which notified to the Respondent the very next day. However, his actions were entirely in line with the procedure set out in the consent orders.
The consent Orders into which the parties entered on 6th August provide that the Respondent was permitted to take the child out of Australia to return on 1 September 2012 (Order 6).
Following the Respondent’s return, the Applicant’s solicitor, Mr A is to hold the child’s passport (Order 9).
The parties are each entitled to take the child out of Australia for a holiday of up to six weeks duration upon giving three months written notice of relevant details (Order 10).
Order 11 then requires the parent receiving that written notice to do all things necessary to deliver the passport to the other parent.
Under Order 12, the parent who last travelled with the child is then to hold the passport until it is needed again for the child’s travel.
The Respondent may well claim that the Applicant has reneged on the agreement, or that he acted deceptively in entering an agreement to settle the Application for Orders that he made.
However, the Applicant was doing no more than the Consent Orders entitled him to do. When the Orders were made, both parties were legally represented. It was the Respondent’s solicitor who prepared the Orders. Both parties signed the Minutes of Order, and their signatures were witnessed by their respective solicitors.
If it was a condition of the agreement between the parties that the Applicant would not seek to take the child out of the country for a period of up to six weeks in December 2012, then this condition should have been included in the Minute of proposed consent orders. It is inexplicable why this condition was not included by the Respondent’s solicitor when he was drafting the document.
Subsection 70NAE(2) of the Family Law Act provides that a person is taken to have had a reasonable excuse for contravening an order 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.
It is difficult, to say the least, for a party to claim that she did not understand the obligations of the Order when she was represented by a lawyer who had drafted the documented containing the Order. The Respondent has not made out a reasonable excuse. The Contravention of Order 11 is established.
Consent Orders are court orders like any other orders. There are no hidden caveats, hidden meanings or hidden understandings. It is incumbent on lawyers who prepare Minutes of Consent Orders to be made by a court to ensure that:
a)The orders are clear and readily understandable;
b)The orders are enforceable;
c)The orders state with precision what it is that the parties have agreed.
When asking the Court to make Orders by consent, lawyers should follow Rule 13.04, which provides for a draft consent order, stating that it is made by consent, to be signed by each party. Lawyers should be prepared to advise the Court that they have satisfied themselves that their clients understand the rights and obligations imposed by the proposed orders.
The Minutes of Consent Order put to the Court in this case were flawed, in that they did not state with precision what it was that the parties had actually agreed and the basis upon which that agreement was reached.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 20 December 2012
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