Garrety & Steyn

[2021] FamCA 67

FAMILY COURT OF AUSTRALIA

Garrety & Steyn [2021] FamCA 67

File number(s):

NCC 802 of 2013

Judgment of:

AUSTIN J

Date of judgment:

23 February 2021

Catchwords:

FAMILY LAW – CHILDREN – CONTRAVENTION – SANCTIONS – Application by the father alleging four contraventions of final parenting orders – Where there are two children aged 11 and 9 – Where the Court is satisfied on the balance of probabilities that three of the contraventions are established – Where the mother failed to establish reasonable excuse – Where the mother is sanctioned under Subdivision E of Division 13A Part VII of the Family Law Act 1975 (Cth) for one count – Where the two remaining contraventions are sanctioned under Subdivision F of Division 13A Part VII of the Family Law Act 1975 (Cth) because they occurred while the mother was already serving good behaviour bonds in relation to proven contraventions in earlier proceedings – Where three good behaviour bonds are imposed upon the mother and the bonds are served cumulatively – Where no orders as to costs.

Legislation:

Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 65NA, 70NAE, 70NEA, 70NEB, 70NEC, 70NECA, 70NFA, 70NFB, 70NFE, 117

Family Law Rules 2004 (Cth) r 21.08

Number of paragraphs:

67

Date of hearing:

12 February 2021

Place:

Newcastle

Counsel for the Applicant:

Mr Rugendyke

Solicitor for the Applicant:

Gillard Family Lawyers

Counsel for the Respondent:

Mr Mathews

Solicitor for the Respondent:

Pagin & Mak Lawyers

ORDERS

NCC 802 of 2013

BETWEEN:

MR GARRETY

Applicant

AND:

MS STEYN

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Upon finding that the respondent contravened Order 16 made on 27 March 2019 on 23 March 2020 (Count 1), pursuant to Sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a)The bond shall be without surety or security;

(b)To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c)The bond shall be for a period of one month, commencing on the date she enters into the bond.

2.Upon finding that the respondent contravened Order 13(b) made on 27 March 2019 on 21 June 2020 (Count 2), pursuant to Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a)The bond shall be without surety or security;

(b)To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c)The bond shall be for a period of six months, served cumulatively upon the bond entered pursuant to Order 1 hereof.

3.Upon finding that the respondent contravened Order 10 made on 27 March 2019 on 13 September 2020 (Count 4), pursuant to Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a)The bond shall be without surety or security;

(b)To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c)The bond shall be for a period of three months, served cumulatively upon the bond entered pursuant to Order 2 hereof.

4.Otherwise, the Application-Contravention filed on 24 November 2020 is dismissed.

5.No order as to costs.

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 Garrety & Steyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J

1. Parenting orders were made on 27 March 2019 between the parties in respect of their two children pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. On 24 November 2020, the father filed an Application-Contravention alleging four counts of the mother’s contravention of those orders.

3. The mother denied each of the four counts alleged against her, though she alternatively contended that any proven contravention was reasonably excused.

   Legal principles

4. The applicable substantive and procedural law was not in dispute.

5. The contravention application related exclusively to orders affecting children and so the provisions of Pt VII Div 13A of the Act applied.

6. The procedure for the conduct of the hearing is prescribed by the Family Law Rules 2004 (Cth) (r 21.08), which was followed.

   Evidence

7. The father relied upon:

   (a)his affidavit filed on 24 November 2020;

   (b)tendered documents (Exhibit F1); and

   (c)an audio file of an emergency 000 telephone call made on 23 March 2020 (Exhibit F2).

8. Once the father’s case closed, the mother’s counsel submitted that counts 1 and 4 should be dismissed because no prima facie case in respect of each was established. The submission in each instance was rejected, because the counts could be sustained taking the father’s evidence at its highest, and so the mother then elected to adduce the following evidence in her defence:

   (a)her affidavit filed on 16 December 2020;

   (b)the affidavit of Mr AC filed on 16 December 2020;

   (c)the affidavit of Ms AB filed on 16 December 2020; and

   (d)tendered documents (Exhibit B1).

9. Each party successfully took objections to the affidavit of the other.

   Count 1

10. This count concerns Order 16, which provides:

    (16)That each party shall advise the other forthwith upon the children, or either of them, suffering from any serious illness or medical emergency and make arrangements for the other to have contact with the child or children in a manner consistent with their condition and the advice of the children’s treating medical practitioner.

11. The allegation, which relates to the mother’s conduct on and following 23 March 2020, was particularised as follows:

    The mother failed to keep the father informed…of a medical emergency concerning [the youngest child] where police and an ambulance was called…

    [the father abandoned the remainder of the particulars during the hearing]

12. It proved uncontroversial that, on 23 March 2020, the mother’s friend (“Mr AD”) made an emergency 000 telephone call to summon help to the mother’s home to deal with the youngest child’s uncontrollable rage. The mother was present when Mr AD made the call and she relayed information to Mr AD about her home address and telephone number for provision to the emergency operator. The only rational inference to draw is that the mother was complicit in making the emergency call and Mr AD acted as her agent.

13. Exhibit F2, played in open Court, revealed statements to this effect made by Mr AD to the emergency operator during several minutes of conversation:

    There were “severe issues”

    The youngest child was “smashing things up”

    The youngest child had been violent towards the mother and other children

    The youngest child was “ripping the house apart”

    The youngest child was inside the house (from where she could be heard screaming in the background), but Mr AD, the mother and the other children were out on the driveway, from where the emergency call was being made

    The youngest child was considered a danger to the other children and the mother and it was not safe to be near her

    Mr AD was “really scared about the safety of the mother and the other kids”

    The youngest child was “absolutely out of control”

    The mother could not cope with the youngest child

    Someone needed to get there “ASAP” because “this is going really badly”

14. When the mother was cross-examined about the call, she conceded Mr AD had correctly described events as they occurred, the events of that day were “very concerning”, the youngest child had experienced an “extreme meltdown”, and it had been going on for about an hour before the emergency call was made. She admitted that, in response to the emergency call, an ambulance attended and the ambulance officers stayed on site for approximately an hour, as tendered documents confirmed.[1] She also admitted that five police officers attended in three different cars and were also present at the house for about an hour.

    [1] Exhibit F1, page 2

15. The mother’s counsel contended the events did not amount to a “medical emergency” and so Order 16 did not oblige her to notify the father of the incident, in which case there was no contravention, but the contention is rejected.

16. Although the child was not conveyed to hospital for any medical treatment that evening, the ambulance officers recommended to the mother that the child should be taken to a general practitioner and paediatric specialists for further assessment.[2] The contemporaneous police records described the incident as a “psychotic episode”[3] and the police officers held concerns for the youngest child and those around her.[4] The mother admitted she made arrangements for the youngest child to consult with a psychiatrist, she believed it was essential for the youngest child to be medicated, and she believed the youngest child also still needed to consult with a neurologist. The mother also said she believed the youngest child’s behaviour was linked to the “medical” or “psychological” conditions from which she suffers.

    [2] Exhibit F1, page 3

    [3] Exhibit F1, page 15

    [4] Exhibit F1, page 18

17. In the face of such concessions by the mother, it was difficult to understand why she did not accept the events of that day fell easily within the definition of a “medical emergency” so as to engage the provisions of Order 16.

18. The mother tried to portray the incident as just another example of the youngest child’s occasional emotional upheavals and blithely pass it off as being rather ordinary, but it was not. She told the ambulance officers this incident was more intense and lasted longer than any other before it[5] and she conceded that the youngest child’s “meltdown” was “extreme”. There was no evidence she had ever before needed to summon emergency services for assistance, inferring the incident genuinely was an “emergency”. The mother and Mr AD certainly perceived it to be so at the time. While the emergency might have largely dissipated upon the arrival of the ambulance and the police, the incident was not thereby deprived of its characterisation as a “medical emergency”. Sooner or later, all emergencies cease to be so.

    [5] Exhibit F1, page 3

19. Despite the dramatic events of that day, the mother said nothing of it to the father. He only found out about it weeks later, on 11 April 2020, when it was mentioned obliquely in conversation by the youngest child.[6] Later that evening he sent an email to the mother enquiring what had happened. She responded with three different emails – all the same evening.[7] The contents of her emails confirmed she was “happy” the ambulance had attended that night and she had since made medical appointments for the youngest child’s assessment and treatment, so there was some form of medical response to the situation.

    [6] Father’s affidavit, paras 1-5

    [7] Father’s affidavit, paras 8-13

20. Whether the terms of Order 16 were actually engaged is determined objectively on the proven facts. I am satisfied on the balance of probabilities that the events on 23 March 2020 amounted to a “medical emergency”, the terms of Order 16 therefore required the mother to notify the father of the events “forthwith”, and her failure to inform him until he chased her for more details on 11 April 2020 constituted a contravention of the order.

21. The mother’s assertion of her honest belief the incident did not amount to a medical emergency does not sustain an alternate defence of “reasonable excuse”. The mother well understood the obligations imposed upon her by Order 16, so the provisions of s 70NAE(2) of the Act are not applicable. Understanding the obligations imposed by an order and deciding whether facts and circumstances invoke the order are two different things. The mother’s assertion that she believed the facts and circumstances did not trigger the operation of Order 16 (even if her assertion is accepted as being true and correct) would not sustain her defence of “reasonable excuse”, as the reasonableness of her belief requires objective assessment, which test it fails.

22. I am satisfied that, on and following 23 March 2020, the mother contravened Order 16 without reasonable excuse.

    Count 2

23. This count concerns Order 13(b), which provides:

    (13)     Each of the parties is restrained from the following conduct:

    (b)Recording by any means, discussions with, or statements of, the children, or either of them, and further from causing or permitting third parties to do so;

24. The allegation, which relates to conduct on 21 June 2020 at 7.00 pm, was particularised as follows:

    The mother has caused third parties to record the children’s telephone discussions with the father.

25. The parties were engaged in an earlier contravention dispute, resolved by orders made on 19 June 2020, which also related to the father’s telephone communication with the children.

26. At 11.13 pm that same night, the mother sent an email to the father informing him that, henceforth, she would ensure a “third party” facilitated his telephone calls with the children, and furthermore, the third party would “transcribe all phone calls”.

27. The father replied on 20 June 2020, objecting to her proposal.

28. The mother emailed the father again on 21 June 2020, telling him she had not changed her mind and the function of the “facilitator” was to “simply record what has occurred on each phone contact to ensure phone contact occurs in accordance with the orders”.

29. That night, the father telephoned the children at the allotted time. He was aware an “unknown third-party” was present with the children. It was the woman who the mother arranged to facilitate the telephone calls (“Ms AF”). As instructed by the mother, Ms AF took notes of the telephone call between the children and the father, which conversation occurred on loudspeaker.

30. The notes taken by Ms AF that evening were in evidence.[8] They are rudimentary and do not purport to transcribe every word passing between the children and the father during the telephone call but they are, nevertheless, contemporaneous notes which record some aspects of the conversation between the children and the father.

    [8] Exhibit M1, page 2

31. The mother attempted to assert the notes did not amount to a “recording” in breach of Order 13(b), but the proposition is rejected. Ms AF was not enlisted to merely record the start and finish times of the telephone calls, because the mother’s mobile telephone was used and she could prove those facts with “screenshots”.[9] Ms AF was needed to verify the content of the telephone conversations.

    [9] Mother’s affidavit, paras 39, 43

32. Within the terms of Order 13(b), Ms AF’s notes were undoubtedly a “means” to “record” the “discussions with” or “statements of” the children. It was their singular purpose. The mother directed Ms AF to make the notes so they could be used by Ms AF to refresh her memory of the telephone call if her evidence was ever needed to corroborate the mother, as occurred here.

33. I am satisfied on the balance of probabilities that the mother contravened Order 13(b) on 21 June 2020.

34. The mother’s counsel did not articulate any defence of “reasonable excuse” in relation to this count. While her instruction of Ms AF to take the notes was motivated by the desire to compile corroborative evidence to protect herself against further prosecution for failing to facilitate the children’s telephone calls with the father, the children were aware the telephone calls were being monitored by Ms AF in that way and so the mischief of their engagement in the parental conflict, which Order 13(b) sought to avoid, was perpetuated.

    Count 3

35. This count concerns Order 10, which provides:

    (10)Unless otherwise agreed, commencing after a period of ten (10) weeks from the date of these orders and until each child starts high school, the children are to have telephone contact with the father during term time every Sunday at any time between 7.00 – 7.30 pm and this is to be facilitated by the father telephoning the mobile telephone or other contact number provided by the mother and the mother is to make the children available to speak with the father;

36. The allegation, which relates to conduct on 6 September 2019 at 7.00 pm, was particularised as follows:

    The mother has failed to facilitate telephone contact between the father and the children by not making the children available to speak with the father without interference.

37. The father said that, during his telephone call with the children on Sunday 6 September 2019, he heard a man and woman in the background. The father’s impression was that the unidentified adults were “talking loudly”, “making a big fuss”, and were “disrupting” his conversation with the children. The mother denied that anyone else, aside from Ms AF, was in the room with the children during the telephone call. Ms AF corroborated the truth of that evidence and the father’s counsel opted not to cross-examine her. While the parties’ evidence was irreconcilable, the mother’s evidence enjoyed corroboration by Ms AF, the reliability of whose evidence the father chose not to challenge. I accept her evidence.

38. Furthermore, there was no dispute the telephone call between the father and children that particular evening lasted the full measure of 29 minutes, so any disruption perceived by the father could not have been too troublesome.

39. I am not satisfied on the balance of probabilities that the mother contravened Order 10 on 6 September 2020 and so count 3 is dismissed.

    Count 4

40. This count also concerns Order 10, the text of which is set under count 3.

41. The allegation, which relates to conduct on 13 September 2020 at 7.00 pm, was particularised as follows:

    The mother has failed to facilitate telephone contact between the father and the children by not making the children available to speak with the father without interference.

42. The parties’ debate over the father’s telephone calls with the children was the subject of email correspondence between them over more than five hours on Sunday 13 September 2020, commencing at 11.47 am and concluding at 5.27 pm.[10]

    [10] Exhibit M1, pages 4-8

43. The mother knew the children were due to speak with the father by telephone at 7.00 pm.

44. When the father called on time, the children were still out in a car with the mother, her friend Mr AC, and three other children. The car was pulled to the side of the road and the children then spoke to the father for 27 minutes, with the telephone on loudspeaker, in the presence of all the other occupants of the car. The mother was impelled to concede the circumstances in which the telephone call took place were “not ideal”. Indeed, they were quite unsuitable. The mother advanced no explanation for why the father’s telephone call, which she was expecting, was allowed to proceed in that way.

45. The father said the telephone call was unreasonably interrupted by one or more persons in the car, aside from the children, which the mother denied. Regardless, the manner in which the mother arranged for the children to receive and participate in the telephone call obstructed the spontaneity and fidelity of the communication between the children and the father. Even if there was no outright interference during the telephone call, the manner in which the mother ensured it took place tended to hinder their communication (s 65NA(2)(a)).

1. I am satisfied on the balance of probabilities that the mother contravened Order 10 on 13 September 2020 and no submission was offered as to how the contravention could be reasonably excused.

   Sanctions

2. Part VII Div 13A of the Act prescribes two regimes of sanctions for the contravention of orders without reasonable excuse. The first category falls under Sub-division E and the second category under Sub-division F.

3. Sub-division E applies if no previous sanction has been imposed for a past contravention or if the Court considers it is more appropriate that it applies (ss 70NEA(1),(2),(3); 70NFA(4)).

4. Sub-division F applies if the respondent has previously been sanctioned for contravening an order or if the subject contravention showed serious disregard of the obligations created by the order (ss 70NEA(4); 70NFA(1),(2)).

5. The mother’s counsel submitted that the sanction imposed upon the mother for count 1 should be imposed under Sub-division E because the conduct comprising the contravention occurred in March/April 2020, before other contraventions were proven against the mother in different proceedings on 19 June 2020. The father inferentially agreed and I accept the submission.

6. The sanctions against the mother in respect of counts 2 and 4, however, should be imposed under Sub-division F because, by the time those contraventions occurred in June 2020 and September 2020, the mother was already serving good behaviour bonds for the contraventions proven against her on 19 June 2020. The mother did not disagree.

7. In respect of count 1, the parties agreed a fine was appropriate, though they differed over the amount. However, Sub-division E does not enable a fine to be imposed, unless a good behaviour bond is imposed and the respondent fails to enter into it (s 70NEB(1)(da)).

8. The contravention was modest. It was reflective of the continuation of conflict between the parties and their unwillingness to share information, but there was no impingement upon the children’s interaction with the father.

9. A good behaviour bond of one month’s duration is imposed. No surety or security is needed (ss 70NEB(1)(d) and 70NEC).

10. In respect of count 2, the mother’s counsel argued no sanction should be imposed because the contravention was “technical” and did not stop the children’s telephone call with the father. While that is true, the father said the children told him they were aware Ms AF took notes of their telephone calls, which they understandably found disconcerting. Even though the mother’s motivation was self-protection, she deliberately acted in a way which involved the children in the continuing parental conflict and thereby prioritised her own need above the children’s. It was an aggravating feature that the contravention on 21 June 2020 occurred only two days after she was ordered to enter into good behaviour bonds for other contraventions.

11. A good behaviour bond of six months’ duration is imposed, again without surety or security (ss 70NFB(2)(b) and 70NFE).

12. In respect of count 4, the mother’s counsel acknowledged the imposition of a good behaviour bond could not be sensibly opposed, but implied it should be of short duration, since this form of breach was an isolated instance. Normally, the children’s telephone calls take place when they are in a house and only Ms AF is in close proximity. While the father impliedly conceded that was true, his counsel asserted the way in which this telephone call occurred demonstrated to the children the mother’s dismissive attitude towards the importance of their telephone communication with him and merited the imposition of a good behaviour bond for the maximum of two years. I reject the submission as being disproportionate. The contravention was not objectively serious enough to warrant the maximum period. However, just as with count 2, the contravention on 13 September 2020 was aggravated by its occurrence whilst the mother was serving a good behaviour bond imposed on 19 June 2020.

13. A good behaviour bond of three months’ duration is imposed, again without surety or security (ss 70NFB(2)(b) and 70NFE).

14. The good behaviour bonds will be served cumulatively. The three proven contraventions occurred on different dates in March, June and September 2020, each contravention was of a different order, and each contravention entailed different forms of conduct.

15. A question arose as to what should be done in respect of the good behaviour bonds imposed upon the mother on 19 June 2020, which the mother breached by her contraventions on 21 June 2020 and 13 September 2020 proven in these proceedings. The mother’s counsel proposed the re-imposition of fresh bonds (s 70NECA(3)(b)), whereas the father’s counsel called for the mother’s imprisonment. Presumably the submission was made on the father’s instructions and not merely a whim, but I reject the submission as being wholly disproportionate. I also reject the submission of the mother’s counsel.

16. Remedial action under s 70NECA(3) is discretionary; not obligatory. In imposing the sanctions upon the mother for counts 2 and 4 in these proceedings, I have taken into account her breach of the existing good behaviour bonds as aggravating circumstances. It would be tantamount to double-dipping or double jeopardy for any further sanction to fall upon her in respect of the former bonds under s 70NECA(3) of the Act.

    Costs

17. The mother’s counsel courageously made an application that the father pay the mother’s costs of the proceedings but, when challenged, he responsibly conceded there was no reasonable basis upon which such an application could be sustained.

18. The father’s counsel then made an application for an order compelling the mother to pay the father’s costs of the proceedings, approximated at $5,000, despite only three of the four counts being sustained. He submitted the proceedings were necessary to prove and sanction those three counts in any event and the failure to prove the fourth did not detract from the efficacy of the costs application.

19. The rule within s 117(1) of the Act ordinarily requires parties to proceedings under the Act to bear his and her own costs, but is expressly subject to the provisions of s70NFB(1) of the Act, which applies here to counts 2 and 4 (dealt with under Sub-division F), but not count 1 (dealt with under Sub-division E).

20. Given the proof of counts 2 and 4, s 70NFB(2)(g) of the Act empowers the Court to order the mother to pay the father’s costs. Indeed, s 70NFB(1) of the Act obliges the Court to make a costs order against the mother, unless satisfied it would not be in the children’s best interests to do so or it is most appropriate in the circumstances to make other orders, in which case, one of the alternative orders prescribed under s 70NFB(2) must be made.

21. Good behaviour bonds have been imposed upon the mother pursuant to s 70NFB(2) of the Act in respect of both counts 2 and 4 and, otherwise, I am satisfied it would not be in the children’s best interests to make a costs order against the mother because of her apparently meagre financial circumstances. The mother’s counsel asserted, albeit in the absence of evidence, that her financial circumstances are quite limited. She allegedly rents accommodation for herself and the children and is unemployed. The father’s counsel was offered, but eschewed, the opportunity to demand the mother’s production of evidence to verify the facts, in which case he is bound to accept the general thrust of the submissions made by the mother’s counsel about her financial predicament.

22. Count 1 was sanctioned under Sub-division E and, while s 70NEB(1)(f) of the Act enables a costs order to be made against the mother, I decline to make such an order in the exercise of discretion. That result is influenced by the non-displacement of the ordinary rule under s 117(1) of the Act, the mother’s financial circumstances, and her successful defence of the contravention application in respect of one of the four counts.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:       

Dated:       23 February 2021