GRANT & RUSSELL

[2014] FamCA 589

FAMILY COURT OF AUSTRALIA

GRANT & RUSSELL [2014] FamCA 589

FAMILY LAW – CHILDREN – Contravention of Order – Alleged contravention by father – Father found guilty on four counts of contravention – Two counts dismissed – Penalty for Contravention – Order for costs

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 21.07

APPLICANT: Ms Grant

RESPONDENT: Mr Russell

FILE NUMBER: HBC 16 of 2010

DATE DELIVERED: 1 July 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eddington

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. On 3 September 2013 the respondent father denigrated the mother in contravention of orders made by this court on 22 May 2013.

2. On 21 November 2013 the father failed to faciliate a telephone call in contravention of the orders made by this court on 22 May 2013

3. In December 2013 the father denigrated the mother in contravention of the orders made by this court on 22 May 2013; and

4. The father contravened the orders made by this court on 22 May 2013 in that he held the children over beyond one week and did not bring them back within three (3) days of the commencement of school term and that each of the contraventions outlined above where without reasonable excuse.

BY WAY OF PENALTY

1. The parenting order made on 22 May 2013 be varied to provide, notwithstanding any other provision of those orders:-

   (a)that the children are to be returned by the mother to the father on
   24 December 2014 (instead of 22 December 2014); and

   (b)the father return the children to the mother at 4.00pm on 25 December 2014 and that the children remain with the mother until 4.00pm on 29 December 2014.

2. The father is required to register and complete the Parents Orders Program conducted by Relationships Australia within ten (10) months from the date of this order.

3. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. The children will be with the father from 4.00pm 24 December 2014 and that the children are to be returned to the mother at 4.00pm on 25 December 2014.

IT IS FURTHER ORDERED

1. The father is ordered to pay the mother’s costs of the contravention application, calculated on a party/party basis.

2. Leave be given to the father to apply to the court in respect of these orders within twenty one (21) days from the date of this order.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 16 of 2010

Ms Grant

Applicant

And

Mr Russell

Respondent

REASONS FOR JUDGMENT

1. Ms Grant commenced contravention proceedings against Mr Russell, I will refer to them respectively as the mother and father, on 7 May 2014, alleging a number of contraventions of an order made by this Court on 22 May 2013, just over one year ago.  The order related to the parties’ children, B and C, who are presently aged 12 and eight respectively.  The contravention application came before me on 20 May 2014 and was supported by two affidavits which have been read into evidence, the first by, the mother[1]; and the second by the children’s maternal grandmother.[2]  The mother also relies upon an affidavit of personal service sworn by Mr D and dated 16 May 2014. 

   [1] Filed the 7 May 2014.

   [2] Filed 7 May 2014.

2. In addition, the mother gave oral evidence that she was in Court on 22 May 2013 when the orders were made, and she identified a minute of order which was signed by herself and by the father.  When the proceeding came before me on 20 May 2014 the father said that he wished to file material in reply and sought an adjournment.  Directions were made at that time for the father to file the material in reply, and the contravention application was listed for hearing before me today.  The father has not filed any further material as far as I can identify from the file, and the father was called well after 10 o’clock, on three occasions, and did not attend.  The mother gave evidence that she was not aware of any reason why he could not attend Court.  The mother, through her legal representative, sought, pursuant to rule 21.07, that the case be determined in the absence of the father. 

3. The orders the mother seeks do not involve incarceration, but do involve a bond.  I do not intend, if I reach a conclusion, to make an order for a bond, because it would be inappropriate for me to do so in the absence of the father.  The orders I will make, if I am satisfied after considering all the factors, are likely to be make-up time as sought by the mother and set out in her affidavit; that the father attend the Parenting Orders Program and perhaps costs.  Given the circumstances, and given that the father has had the opportunity to engage in the proceedings and has not done so, I am satisfied that I should, in all of the circumstances, proceed to deal with the matter in his absence.

4. On the evidence before me I am satisfied that the father was aware of the orders.  He was in Court when the orders were made, and signed a document reflecting the nature of the orders.  I am equally satisfied that he was served personally with the contravention application, the material in support of that contravention application, having regard to the uncontested evidence of Mr D. 

5. There are a number of alleged contraventions to which the contravention application is directed, and to which the evidence is directed.  The first is contained in paragraph 7 of the contravention application, where the mother asserts on:-

   3 September 2013 at approximately 8 pm at [E Town], Tasmania, the father, without reasonable excuse, denigrated the mother to the children, or either of them, and/or denigrated the mother in the presence of the children, or either of them.

6. The mother says that this is in breach of order 19 made on 22 May 2013, which provides:-

   Neither party denigrate the other party to the children, or either of them, and neither party denigrate the other party in the presence of the children, or either of them.

7. The evidence upon which the mother relies in this respect is contained in the affidavit[3] of her mother in paragraphs 4 through to 9.  This has to be seen in the context of the mother’s evidence that she had found a note on the windscreen of her car, which she asserted was from the father.  The father denied that.  It was clearly a matter of some contention between the parties, and some hostility.  The maternal grandmother had attended at the father’s home to collect a key.  The father answered the door and the maternal grandmother said that the child, B, was present and, in the context of that, the father said to B, “Your mother does the same to me,” and then said, “She”, referring to the mother, “should not put you through this.”  He went on to say in front of the child, C, that he was able to speak to the maternal grandmother, and then said in front of the children, “The police are looking into the fake death threats [Ms Grant] wrote to herself.  I am going to have her charged.” 

   [3] Ibid.

8. The mother asserts this is a denigration of her in the presence of the children, and relies upon the approach adopted by Cronin J in Merrick & Yardley [2012] FamCA 652, where his Honour defined denigration, which is to attack the good reputation, or speaking ill of. I am satisfied, given the context of the argument and the circumstances in which they arose, that the father denigrated the mother in the presence of the children on 3 September 2013.

9. The second alleged contravention is set out in paragraph 9 of the mother’s contravention application where she asserts on:-

   21 November 2013 at 7.22 pm, the father, without reasonable excuse, failed to facilitate telephone communication between the mother and the children, or either of them, upon the request of the mother. 

10. The evidence in relation to this is contained in paragraphs 30 to 33 of the mother’s affidavit.  She describes a request to speak to the children, and no response to that request.  The father was given an opportunity to file material in response to that assertion, but has not done so and, as such, I am satisfied on the evidence before me that the father, without reasonable excuse, failed to facilitate telephone communication between the mother and the children on 21 November 2013. 

11. The third alleged contravention was contained in paragraph 11 of the contravention application, and it is asserted that in:-

    December 2013 in Tasmania, the father, without reasonable excuse, discussed the Family Court proceedings with the children, or either of them.

12. The mother relies on paragraph 29 of her affidavit[4], where the mother says that when C was returned to her care on 23 December 2013 he said to her:-

    How come you won’t go 50/50?  Dad said we should be with him 50/50. 

    [4] Filed 7 May 2014.

13. The mother asserts that this amounts to a discussion of the proceedings.  I do not accept that submission.  I accept that it is an expression of the father as to his wishes, but not a discussion of the proceedings, as the proceedings were, at that time, at an end.  As such, I will dismiss that alleged contravention. 

14. The next one is set out in paragraph 13 of the contravention application, where, and I quote:-

    December 2013, in Tasmania, the father, without reasonable excuse, denigrated the mother to the children, or either of them, and/or denigrated the mother in the presence of the children, or either of them.

15. In that regard, the mother relies upon paragraph 27 of the affidavit, where she says:-

    [C] also said to me in December 2013, after his return, “I think you’re the best mum in the world.  Why does Dad tell us you’re a psycho, Mum?”  [C] said he wasn’t sure what to believe, and then asked me, “Why is Dad so mean to you, Mum?”  [C] was confused and distressed when he raised these comments.

16. Again, the father had the opportunity to file material in response to this assertion of fact, albeit it was hearsay.  He chose not to do so.  As such, I am satisfied that that ground is established. 

17. The next ground is contained in paragraph 15, and in paragraph 17 of the mother’s contravention applications, and I won’t set them out as they’re set out in detail in the contravention application in the mother’s affidavit.  The mother had entered into private arrangements with the father in July of 2013 to enable him to take the children to Queensland for a holiday, and for them to spend significant time, or more time than was provided under the orders.  The mother did this on the basis that the time would be made up. 

18. The mother asserts, and it is not at present challenged, that the father, in December and in January, reneged from the agreement, and did not provide the additional time to which the parties had original agreed.  Whilst that may be unhappy or uncomfortable, I am not satisfied it could amount to a contravention of an order, and therefore that must fail, and those aspects of the application are dismissed. 

19. There is a further part of the application which cannot succeed, and I think I have dealt with that in terms of the father not bringing the children back until 23 December, when the orders provided 24 December.[5]  The final aspect of the contravention relates to the return of the children in January 2014.  As part of the agreement, the children were to be returned to the mother on 27 January 2014 for make-up time.  The father was to have the children for slightly less than a week. 

    [5] The mother had provided the father with a calendar of the 2013 Christmas holiday period setting out that she have make up time with the children whereby, in lieu of the father taking the children to the Gold Coast during the May/June school holidays, they be returned to her on the 22 December 2014 rather than the 23 December 2014.

20. The father, as I indicated earlier, acted in breach of that agreement.  But in any event, the father was required firstly to have the children for only one week under the orders, and it is clear on the evidence that he had the children for more than one week, and secondly that the children would be returned three clear days prior to the commencement of school.  I accept the evidence of the mother that school was to commence at 9 o’clock on Wednesday 5 February 2014, and that the children were returned to her on the Sunday afternoon, when they should have at least been returned to her care at 9 o’clock on that day.

21. In addition, of course, there was the holding over by the father of the children over that period.  I am satisfied that this amounts to a contravention of the order in terms of returning the children at the end of the Christmas/New Year school holiday period, and I am satisfied that the father has contravened that order.  As such, I have found four contraventions. 

22. It was open for the father to file material to set out whether he agreed or disagreed with the facts asserted by the mother, and he was given time to do so, and did not do so.  The father was given time to adduce evidence as to any reasonable excuse for his failure to comply with those orders.  He has chosen not to do so, and there is no evidence before me of reasonable excuse, and as such, I am entitled to proceed and find the contraventions established without reasonable excuse, and I do so. 

23. What punishment should I impose upon the father, bearing in mind that he is not here today?  In her affidavit, the mother said she sought make up time.  Given the difficulties and the history which she set out in her affidavit, which was unchallenged, that seems to me a sensible and a proportionate response to the contraventions to which I have alluded, and I intend to make those orders. 

24. She also seeks an order that the father attends the Parenting Orders Program conducted by Relationships Australia, as was explicit and perhaps implicit in the contravention application.  Given the history of this matter, and given what has happened since the orders were made, it seems to me a sensible and sound approach to try and reduce the conflict to which these children are being regularly and constantly exposed, and which will undermine their senses of self, no doubt, into the future.  Accordingly, I intend to make those orders.  

25. Finally, I am asked to make an order for costs.  I am conscious that the Family Law Act 1975 (Cth) provides that each party ought to pay his or her own costs in relation to these proceedings in the Family Court. I am also conscious of the approach adopted by the High Court in Penfold v Penfold[6] with regard to the question of costs, that there is not a threshold, but it is something that I need to consider in the light of the whole of the section. 

    [6] (1980) 144 CLR 311.

26. In terms of the financial circumstances of each of the parties, the father has not provided any detail to me, and as such, I can conclude that he is able to meet a reasonable costs order, bearing in mind that costs were a consequence of such application, as set out in the contravention application which was served personally upon him.  The mother has not provided financial details to the Court.  There is no evidence that either party is in receipt of assistance by Legal Aid. 

27. Sub sections (c) and (d) of section 117(2A) are the primary factors which I have to consider.  That is, the conduct of the parties to the proceedings, and that the proceedings were wholly necessitated by the failure of a party to comply with orders of the Court.  In this case, the mother is not wholly successful, but she is successful.  Given the nature of contraventions, it is unlikely that the mother was going to be wholly successful, as I have to adopt, and I have adopted as technical an approach as I possibly can, having regard to the quasi-criminal nature of these proceedings.

28. But the father has contravened the orders, and in circumstances almost immediately after the orders was made, and when one had hoped that the memory of the Family Court proceedings would not have drifted too far away from the parties.  The mother was not wholly successful.  The father was not wholly unsuccessful, even though he did not appear.  There is no evidence of any offers made in writing.

29. Given the nature of the proceedings, and the findings that I have made, I intend to make a costs order. 

30. Accordingly, in the proceedings of Grant v Russell, the Court declares that on 3 September 2013, the father denigrated the mother in contravention of orders made by this Court on 22 May 2013, and that on 21 November 2013, the father failed to facilitate a telephone call in contravention of the orders made by this Court on 22 May 2013, and that in December 2013, the father denigrated the mother in contravention of the orders made by this Court on 22 May 2013, and that the father contravened the orders made on 22 May 2013 in that he held the children over beyond a week and did not bring them back within three days of the commencement of school term, and that each of those contraventions were without reasonable excuse. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 July 2014.

Associate:     

Date:              1 July 2014