Garner & Jansen

Case [2025] FedCFamC1F 330

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garner & Jansen [2025] FedCFamC1F 330

File number: SYC 7784 of 2023
Judgment of: MCCLELLAND DCJ
Date of judgment: 16 May 2025
Catchwords: FAMILY LAW – CONTRAVENTION – Where the father alleges the mother contravened interim parenting orders by not facilitating the child spending time with him in accordance with orders, by not ensuring the child attended a development class and by unilaterally ceasing the child’s daycare enrolment – Consideration of s 70NAC of the Family Law Act 1975 (Cth) – Where the mother’s failure to facilitate a swift changeover hindered and prevented the child spending time with the father – Where the interim orders in respect to the child’s daycare were ambiguous – Where alleged contraventions of ambiguous orders are to be resolved in favour of the litigant facing the contravention order – Further listing and trial directions to determine if the mother had any reasonable excuse for contravening orders.
Legislation:

Family Law Act 1975 (Cth) s 70NAC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.67

Cases cited:

Hale v Hale [2011] FMCAfam 1107

Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87

O’Brien & O’Brien (1993) FLC 92-396; [1992] FamCA 52

Stamp & Stamp [2014] FCCA 1269

Stevenson v Hughes (1993) FLC 92-363; [1993] FamCA 14

Division: Division 1 First Instance
Number of paragraphs: 90
Date of hearing: 25 March 2025
Place: Sydney
Counsel for the Applicant: Mr Bateman
Solicitor for the Applicant: Barker Evans
Counsel for the Respondent: Ms Clarke
Solicitor for the Respondent: Brigid Justice

ORDERS

SYC 7784 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GARNER

Applicant
AND:

MS JANSEN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

Contraventions

1.In relation to the Application–Contravention filed by Mr Garner (“the father”) on 24 January 2025, the Court finds that Ms Jansen (“the mother”):

(a)Contravened Order 4(b)(i) made 8 May 2024 on 13 August 2024;

(b)Contravened Order 4(a)(i) made 8 May 2024 on 3 September 2024; and

(c)Contravened Order 4(b)(ii) made 8 May 2024 on 14 September 2024.

Filing directions and future listing

2.The Application–Contravention filed by the father on 24 January 2025 is listed for further hearing at 10.00 am on 11 August 2025 to hear any argument in respect to:

(a)the mother’s defence of reasonable excuse to her contraventions; and

(b)any variation sought to the orders of 8 May 2024.

3.By no later than 4.00 pm on 30 May 2025, the mother has liberty to file and serve an affidavit setting out any reasonable excuse she contends she has in relation to her contraventions.

4.By no later than 4.00 pm on 13 June 2025, the father has liberty to file and serve an affidavit in reply to the mother’s affidavit referred to in Order 3 herein.

5.The parties have liberty to apply directly to my chambers in the event that they jointly and…

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AGLC
Garner & Jansen [2025] FedCFamC1F 330
Case
[2025] FedCFamC1F 330
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a dispute between Mr Garner and Ms Jansen, the parents of a child, regarding alleged contraventions of interim parenting orders. The father alleged that the mother contravened the orders by not facilitating the child spending time with him, not ensuring the child attended a developmental class, and unilaterally ceasing the child's daycare enrolment. The mother elected not to file an affidavit but relied on a tender bundle of documents. The court had to decide whether the mother contravened the interim parenting orders and if so, whether she had a reasonable excuse.

The court considered the meaning of contravening a child-related order under the Family Law Act 1975 (Cth). It held that a contravention occurs if a person intentionally fails to comply with the order, makes no reasonable attempt to comply with the order, hinders or prevents another person from spending time with the child in accordance with an order, or aids or abets a contravention of the order. The court applied principles from previous cases, which emphasised that the parent with whom the child lives has a duty to actively encourage the child to spend time with the other parent and to make a reasonable attempt to comply with the orders.

The court found that the mother contravened Order 4(b)(i) on 13 August 2024 by not facilitating the changeover of the child from the mother to the father. The father's evidence was credible and unchallenged, while the mother's tender bundle contained largely unsworn hearsay and was given little weight. The court also found that the mother contravened Order 4(a)(i) on 3 September 2024 and Order 4(b)(ii) on 14 September 2024. The interim orders regarding the child's daycare were ambiguous, but the court resolved the ambiguity in favour of the father.

The court ordered that the matter be listed for further hearing on 11 August 2025 to consider the mother's defence of reasonable excuse and any variation sought to the orders of 8 May 2024. The mother had until 30 May 2025 to file an affidavit setting out any reasonable excuse she contends she has in relation to her contraventions, and the father had until 13 June 2025 to file an affidavit in reply. The parties also had liberty to apply directly to the court's chambers if they wished to vary the timetable to attend family dispute resolution.

Orders

Orders of the court

SYC 7784 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GARNER

Applicant

AND:

MS JANSEN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

Contraventions

1. In relation to the Application–Contravention filed by Mr Garner (“the father”) on 24 January 2025, the Court finds that Ms Jansen (“the mother”):

(a) Contravened Order 4(b)(i) made 8 May 2024 on 13 August 2024;

(b) Contravened Order 4(a)(i) made 8 May 2024 on 3 September 2024; and

(c) Contravened Order 4(b)(ii) made 8 May 2024 on 14 September 2024.

Filing directions and future listing

2. The Application–Contravention filed by the father on 24 January 2025 is listed for further hearing at 10.00 am on 11 August 2025 to hear any argument in respect to:

(a) the mother’s defence of reasonable excuse to her contraventions; and

(b) any variation sought to the orders of 8 May 2024.

3. By no later than 4.00 pm on 30 May 2025, the mother has liberty to file and serve an affidavit setting out any reasonable excuse she contends she has in relation to her contraventions.

4. By no later than 4.00 pm on 13 June 2025, the father has liberty to file and serve an affidavit in reply to the mother’s affidavit referred to in Order 3 herein.

5. The parties have liberty to apply directly to my chambers in the event that they jointly and consensually wish to vary this timetable with a view to attending family dispute resolution.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

As is her right in circumstances where she faces a potential civil penalty, the mother elected not to file an affidavit (r 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). She did, however, rely on a tender bundle of documents that were admitted into evidence, subject to weight, having regard to the relevance of the documents and the hearsay nature of much of the evidentiary content (Exhibit 2). BACKGROUND AND RELEVANT CONTENTIONS The relevant consent orders dated 8 May 2024, that are the foundation of Counts 2, 5–6 and 12, provide that:4. From 27 June 2024 to 23 September 2024, the child spends time with the Father as agreed between the Mother and Father in writing and in the absence of agreement in a two-week rotation as follows:a. In Week 1:(i)From 3.00pm on Tuesday until before daycare the following Wednesday morning;b. In Week 2:(i)From 3.00pm on Tuesday until before daycare the following Wednesday morning; and(ii) From 3.00pm on Saturday until 3.00pm on Sunday.…6.Unless otherwise stipulated in these Orders, [X] is to attend at least one [B Program] (9.00am to 10.30am and/or 1.30pm to 3.00pm) on each day she attends daycare unless agreed in writing by the parties or with a medical certificate. The relevant consent order dated 9 January 2024, that Count 53 relates to, directs that:17.The parties are to do all thing [sic] and sign all documents to facilitate [X’s] enrolment and attendance at [D Daycare] for three days per week (in whichever configuration offered by [D Daycare]) immediately upon a spot becoming available.THE LAW Section 70NAC(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the meaning of contravening a child-related order as: 70NAC Meaning of contravene a child-related order(1) A person contravenes a child-related order only if:(a) the person is a person (other than a child) to whom the order applies and:(i) the person intentionally fails to comply with the order; or(ii) the person makes no reasonable attempt to comply with the order; or(b)the person is not a person to whom the order applies, and the person is not a child, but:(i) the person intentionally prevents compliance with the order by a person to whom the order applies; or(ii) the person aids or abets a contravention of the order by a person to whom the order applies.[Note omitted] Furthermore, s 70NAC(2) of the Act relevantly provides that a person contravenes a child-related order when a person hinders or prevents another person from spending time with the child in accordance with an order setting out who the child is to spend time with. RELEVANT PRINCIPLES In the matter of Stamp & Stamp [2014] FCCA 1269, Judge Riethmuller (as he was then known) observed at [21]: “it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner”. Helpfully, his Honour set out observations made in a number of cases with respect to the concept of making a “reasonable attempt” to comply with orders. Those principles are summarised below:(a)The primary carer must actively encourage the child to attend time with the other parent as ordered.(b)The Court should consider whether, in reality, the primary carer has taken reasonable steps, rather than just considering what has occurred “on the face of things”: O’Brien & O’Brien (1993) FLC 92-396 at 80,043.(c)A parent must do more than deliver the child to the point of changeover, invite the child to walk to the other parent and do nothing further to encourage the child to attend. If the child then refuses to attend, it will not be open to the primary carer to say they have “tried” and thereby discharged their obligations “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 at 79,813 (“Stevenson v Hughes”).(d)It is insufficient for the primary carer to say it is up to the child whether they attend for time, or to imply that this is the case.(e)The primary carer should make the child understand that they require the child to spend time with the other parent.(f)Parents are expected to bring to bear all the authority that they have over a child to ensure compliance with orders, just as they would to ensure the child attends school.(g)The tone adopted by the primary carer may be relevant. A child can be invited to spend time with their other parent in a way that conveys a suggestion that the primary carer really does not mind if the child says they do not want to attend. Such an invitation will not be sufficient.(h)Token efforts at compliance, by uttering a few phrases is insufficient, especially where those phrases do not positively encourage the child to go with the other parent. (i)The primary parent is “not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance”: Stevenson v Hughes at 79,816.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I respectfully apply and adopt those principles in my consideration of the relevant facts in the present case.CONSIDERATION As earlier noted, the mother has exercised her right to refrain from filing evidentiary material. However, this has left the husband’s evidence unchallenged except by the process of cross-examination and by the mother’s tender bundle, which was largely in the form of legal correspondence, text messages between the parties and unsworn hearsay reports and representations in respect to relevant events, rather than first-hand accounts of what occurred. For those reasons, I give the evidence presented by the wife in the form of her tender bundle little weight. Comparatively, the sworn evidence, set out in the husband’s affidavit, was plausible and the veracity of the evidence was not diminished in the process of cross-examination. In those circumstances, I give the husband’s evidence considerable weight. Count 2 Count 2, as particularised above, contends that the mother contravened Order 4(b)(i) of the orders dated 8 May 2024, by failing to facilitate changeover of the child from the mother to the father on 13 August 2024. By way of background, on 13 August 2024, the parents discussed changeover occurring at McDonald’s in Suburb F, which was confirmed to occur at 4.00 pm. The father attested that the mother arrived at McDonald’s with X, who appeared happy and smiling. However, the father contends that the mother knelt next to X near the entrance and whispered something into her ear and that they stayed in this position for five minutes, causing X to become upset and grip her mother tighter. From 4.05 pm to 6.50 pm, the father sent the mother text messages requesting the mother say goodbye to X and allow her to have time with him. He annexed those text messages to his affidavit (Father’s affidavit filed 24 January 2025, Annexure “E”). The father attests that the mother continued hugging X rather than encouraging her to move into the father’s care. Significantly, the father attests at paragraph 23 of his affidavit that at about 4.30 pm, he heard the following conversation between the mother and the child in G Country language:[Ms Jansen]: “Do you want to go home?”[X]: “Yes, I want to go home. I will not stop crying until you take me back home.” [Ms Jansen]: “I will wait until your tears will dry. We can go and play indoor[s].” [X]: “I don't want to go to him. Will you take me back if I cry?” [Ms Jansen]: “Yes.” The father states that the mother then took X to the play equipment, and did not acknowledge the father’s presence. The father observed X looking healthy and energetic, running through the play equipment, without signs of being distressed. The father states that at about 4.58 pm, he bought X an ice cream to refocus her attention on him and that, rather than encouraging the child to focus her attention on the father, the mother continued to stay with X, giving her milk and buying her dinner at McDonald’s, despite the father stating he wanted to give X dinner at his home.