Gardner & Vaughan

[2021] FamCA 303

FAMILY COURT OF AUSTRALIA

Gardner & Vaughan [2021] FamCA 303

File number(s):

NCC 2984 of 2020

Judgment of:

AUSTIN J

Date of judgment:

6 May 2021

Catchwords:

FAMILY LAW – CHILDREN – Contravention – Where the mother filed an application alleging multiple contraventions of interim parenting orders – Where there are three children aged between 14 and 11 years – Where the interim orders provide for the children to live with the father and to spend time with the mother – Where the two eldest children have since voluntarily moved to live with the mother – Where the subject order requires the children to spend time with the mother – Where the mother pleaded the father refused to allow the order to be implemented – Where the father only had to meet the case advanced – Where the mother could not demonstrate the youngest child failed to spend time with her because of the father’s refusal to implement the order – Application dismissed – Where the father sought costs against the mother – Where the ordinary rule in s 117(1) of the Family Law Act 1975 (Cth) should apply – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss, 69ZN(4), 69ZN(6), 69ZP(a), 69ZQ(1)(a), 69ZX(1)(a), 69ZX(2)(g), 117(1), 117(2)

Family Law Rules 2004 (Cth) r 21.08

Division:

General Division

Number of paragraphs:

16

Date of hearing:

6 May 2021

Place:

Newcastle

Counsel for the Applicant:

Ms Vogel (until instructions withdrawn)

Counsel for the Respondent:

Mr Kent

Solicitor for the Respondent:

Effective Legal Solutions

ORDERS

NCC 2984 of 2020
BETWEEN:	MS VAUGHAN Applicant
AND:	MR GARDNER Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	6 MAY 2021

THE COURT ORDERS THAT:

1.The Application-Contravention filed on 15 March 2021 is dismissed.

2.The respondent father’s oral application for costs is dismissed.

NOTATION

A.The father informed the Court through his counsel that he will henceforth comply with the interim orders made on 4 September 2020, in so far as they concern the youngest child, commencing with the implementation of Orders 5 and 6 this afternoon.

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

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

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

EX TEMPORE REASONS FOR JUDGMENT

AUSTIN J

1. On 4 September 2020, I made interim parenting orders between the parties in respect of their three children, who are now aged between 14 and 11 years. The two oldest children are daughters, and the youngest child is a son. The interim orders provide for the children to live with the father and to spend time with the mother.

2. It is common ground that the two girls have since voluntarily moved to live with the mother, but the son remains living with the father.

3. On 15 March 2021, the mother filed an Application-Contravention alleging many contraventions of the interim parenting orders by the father, which application was listed for hearing before me today. Both parties were represented by counsel, though the mother withdrew instructions from her counsel during the hearing and continued on her own.

4. The Application-Contravention contains 30 separate counts. Many of them were either partially or entirely withdrawn. The mother was not permitted to prosecute any count related to the two eldest children, who now live with her, since it would serve no practical purpose. Contravention applications are designed to induce future compliance with existing orders; not to gratuitously penalise the respondent for past violations. The power to prevent the maintenance of those counts resides within the Family Law Act 1975 (Cth) (“the Act”) in ss 69ZN(4), 69ZN(6), 69ZP(a), 69ZQ(1)(a), 69ZX(1)(a) and 69ZX(2)(g). Because the two eldest children now live with the mother, no question of their future failure to merely spend time with her arises.

5. As it transpired, the mother elected to pursue only four counts, and only then insofar as those counts related to the youngest child (being counts 2, 12, 17 and 25). It was not controversial that, on each of those four occasions, the youngest child failed to spend time with the mother in accordance with Order 5 made on 4 September 2020.

6. In support of those counts, the mother relied upon specific parts of her affidavit filed on 15 March 2021 (being [1]–[5], [9]–[12], [54]–[57], [73]–[75] and [107]–[113]).

7. The procedure prescribed by r 21.08 of the Family Law Rules 2004 (Cth) was employed for the hearing.

8. The father denied his contravention of Order 5 in the manner pleaded and particularised in relation to each of the four counts within the Application-Contravention. In the alternative, he contended that his contraventions were reasonably excused.

9. At the close of the mother’s case, the father contended the Application-Contravention should be dismissed because there was no case to answer on the evidence proffered. That submission was accepted, after having heard submissions in response by the mother’s counsel and then by the mother herself, once her counsel was discharged. These reasons explain why.

10. In each of the four counts, it was alleged the youngest child did not spend time with the mother because the father “refused to allow” the mother to spend time with the child. I pause to indicate that the operative parenting orders do not require the mother to spend time with the children, but rather, require the children to spend time with her.

11. Significantly, the mother did not simply plead that the father failed to comply with Order 5 on those four specific occasions. While the youngest child did not spend time with the mother on those four occasions, there was no evidence to prove that resulted because the father “refused to allow” it to happen, as was alleged. The father only had to meet the case the mother advanced and she was impelled to concede in cross-examination that she was unable to say why the youngest child failed to spend time with her. It may not have been because the father refused.

12. The point was not insignificant, given the mother’s admission that after the interim parenting orders were made in September 2020 she became bound by a family violence order made by a State court (albeit made without admissions) which protects the youngest child against certain forms of her behaviour. Conceivably, the child may refuse to spend time with the mother despite the father’s best efforts to comply with the orders.  Since the mother’s evidence, taken at its highest, did not bear out the four allegations as pleaded, each count will be dismissed.

13. The father sought his costs against the mother, but the application is refused. The ordinary rule in s 117(1) of the Act should prevail. No submission made by the father justified invocation of s 117(2) of the Act.

14. Save for a short period, the mother was not legally represented in these proceedings because of her tight financial circumstances. They are even tighter now that two of the three children live with her.

15. It also bears mentioning that, although the youngest child has not spent time with the mother for some six months, the father volunteered that the youngest child will begin spending time with her in accordance with the existing orders as from this afternoon. One wonders how the father will now, so suddenly, be able to ensure the orders in respect of the youngest child will be implemented when he has been unable to do so for many months. The circumstances objectively tend to suggest the mother’s Application-Contravention had a salutary effect in helping to re-focus the father’s mind on the obligations he bears as a responsible parent.

16. For those reasons I make the following orders.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       17 May 2021