Gunby and Carrington
[2019] FamCA 831
•27 September 2019
FAMILY COURT OF AUSTRALIA
| GUNBY & CARRINGTON | [2019] FamCA 831 |
| FAMILY LAW – ORDERS – Contravention. |
| Family Law Act 1975 (Cth) div 13A of pt VII ss 69ZN, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 70NFA(2), 70NFA(3), 70NFB, 70NFE Family Law Rules 2004 (Cth) r 21.08 |
| Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 McClintock & Levier (2009) FLC 93-401 |
| APPLICANT: | Ms Gunby |
| RESPONDENT: | Mr Carrington |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| DATE DELIVERED: | 27 September 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The Court finds that Count 1 of the Contravention Application filed on 3 July 2019 is proven in that the father has contravened orders made on 4 September 2013.
On or before 4 pm on 2 October 2019 MR CARRINGTON is required to enter into a Bond for a period of twelve (12) months with the condition of the Bond being:-
(a) That he be of good behaviour during the period of the Bond;
(b) That he comply with all current and future parenting orders.
Further consideration of the proceedings generally be adjourned to 11 October 2019 at 2.15pm NOTING that the Court may be delayed in the further hearing of this matter that day.
Leave is granted for the parties to file further proceedings including any initiating application, response or application for a recovery order in respect of the child B born … 2008.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gunby & Carrington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4119 of 2008
| Ms Gunby |
Applicant
And
| Mr Carrington |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The proceedings concern a Contravention Application filed on 3 July 2019 by Ms Gunby (“the mother”) against Mr Carrington (“the father”).
The application relates to an allegation by the mother that the father has breached parenting orders or a condition of parenting orders made on 4 September 2013. Those orders contain two components. The first is a notation that the parties agree there is not any unacceptable risk to the child, and that allegations of risk and family violence have been dealt with appropriately by other terms and conditions of the order.
The second part relates to the operative orders which provide that the parties have equal shared parental responsibility for B born in 2008 (“the child”), that the child live with the mother and spend time with the father as follows:-
a)each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday;
b)for the first half of each short school holiday period; and
c)for one half of the Christmas school holiday period to be taken on a week about basis;
d)and at other times as may be agreed between the parties.
The order also provided for the dismissal of the Independent Children’s Lawyer (“ICL”), the order of appointment being 11 July 2012.
The alleged contravention is that at 6.00 pm at Suburb C on 30 June 2019, the father did not return the child to the mother pursuant to the said orders. It is alleged by the mother that the father failed to comply with orders of the Court, and that he did so without reasonable cause or excuse. The hearing that was conducted on 27 September 2019 and the parties appeared as self-represented litigants. They both have had representation from time-to-time over the eleven years of the litigation.
At the commencement of the proceedings, in recognition that the parties were self-represented, the Court inquired of each of them whether they had sought or wanted legal advice and whether they would wish to take the advantage of a discussion with the duty solicitor assigned to the Court. The position that each of the parties adopted was that they were aware of the issues before the Court, were anxious that there be a timely resolution and they did not wish to seek any adjournment or any accommodation in relation to legal advice. I fell in with their separate position. The proceedings were delayed for a short period of time to enable the Court to cause photocopies of documents that the mother had not brought to Court.
I advised the parties as to the manner in which the hearing would be conducted. In particular, given that it was the mother’s application that alleged contravention, the Court’s attention turned to the father, and he was advised that in relation to the first stage in the proceedings, it was to determine what his position was in relation to the alleged breach. He had the option of admitting the breach, of denying the breach, or of admitting the breach but asserting that he did so with reasonable cause and excuse. The father indicated his understanding of that, and when the matter came back for hearing following the short adjournment, the father was unequivocal in his position. He admitted the breach but asserted he had reasonable excuse.
The parties were then advised as to the mechanics of the hearing and that the mother would give evidence and be the subject of cross-examination by the father with a right of re-examination if necessary. The father was advised that at the conclusion of the mother’s evidence, the Court would determine whether there was a case to answer, and if so then the focus would turn to the father to give his evidence (if he decides to do so) as to the matters that he contends are necessary for the Court to be able to determine whether a breach has occurred, and if so, whether a reasonable excuse is available to the father.
The mother relied upon two affidavits. The first being an affidavit filed 1 July 2019, which alleged that the father did not return the child to her on 30 June 2019. The second affidavit dated 5 September 2019 was more expansive and provides some background context. Generally, it is more indicative of the circumstances that have occurred or relate to child since his non-return to the mother on 30 June 2019. The mother did not supplement her evidence significantly, but she did seek to raise with the Court some issues in respect of the involvement by the police following a complaint or allegation that the child was at risk in the mother’s home.
No better information was presented by the mother about that. Whilst she asserts that the police investigated the complaint, they concluded their investigation without there being any further investigation or charge laid. There is no evidence about that other than the evidence of the mother which I accept, which is that to the best of her knowledge there has been no further police involvement.
The father took the opportunity to cross-examine the mother but it was limited and did not press the mother in the sense of any allegation or assertion of neglect that he was making. The mother was released from the witness box. The father then gave evidence. Although not obliged to file an affidavit the father did so on 1 August 2019. The matters raised are confined to two paragraphs, which I repeat:-
(1)Child, [the child], has reported to SAPOL physical and psychological abuse (SAP…), by mother and mother’s boyfriend, Mr E.
(2)Child, [the child], has reported to SAPOL mother’s coercive techniques to silence the child about abuse, causing ongoing stress and extreme anxiety to the child.
It is reasonable to assume from the brief matters raised by the father that the issue that provides the foundation for his assertion that he breached the order, but with reasonable excuse, relates potentially to an allegation that the child is at risk in the mother’s home and as a consequence of that risk, there is some investigation or activity by SAPOL which would be relevant to these proceedings.
The father was urged by the Court to give careful consideration to those matters and to use the opportunity that he now had, namely, in examination-in-chief to expand upon those matters and provide the evidence from whatever source he considered was necessary to flesh out the matters he says the Court needs to bring to account in the determination of the contravention. The high watermark of the father’s evidence was not evidence from his own knowledge. He made no observations of activities or conduct in the mother’s household. He had no other evidence other than evidence from the child as to what had occurred.
The difficulty was that even if it be the case that the child has said certain things to the father, the father was not able to report or repeat those matters with any detail that could be the subject of a considered response, an objection by the mother, or an acceptance by her. That is, the father’s evidence did not proceed beyond the general observation and assertion that the child was at risk. The father filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 1 August 2019 (“the Notice of Abuse”). In that document the father alleges that there was a physical assault by [the mother’s boyfriend], with ongoing aggression causing extreme distress; that the child had been thrown onto a hard tiled kitchen floor in the week following the child’s eleventh birthday. There was yelling and screaming and it is asserted that the mother is aware of ongoing abuse. The child reports that the mother told him not to tell anybody, especially the father.
The difficulty is that the Notice of Abuse is not evidence. It is not an affidavit. When given an opportunity to expand upon those matters in evidence, the father declined to do so. The reports suggest that SAPOL may have conducted an interview. No evidence was presented in that regard. The report suggested that the police have had some other involvement or engagement and may have taken a statement and/or sought evidence from other parties other than the child. The father did not present that evidence.
There is a contention between the parties as to whether the police investigated the complaint of the father and whether the investigation had concluded. It is not a matter of there being any uncertainty. If there is an ongoing police investigation, that is not a matter that is difficult to determine. If there is no ongoing police investigation, equally, that is not a matter difficult to determine. But neither party has sought to explore or investigate those matters. It might be said that it is not a matter for the mother, in circumstances where she says the order has been breached. Certainly, as far as the father is concerned, he gave some evidence that there were some difficulties about the subpoena process, or about the reluctance of SAPOL to provide information without a subpoena. That, of course, is a matter for each of the parties in terms of the manner in which they present their case.
It is reasonable to observe that the alleged breach occurred on 30 June 2019, and the mother’s Contravention Application was filed on 3 July 2019. Moreover, the father was aware that there may have been an interview with the child by the police on 29 June 2019. So much is evident from the Notice of Abuse. The Court file does not reflect an application to change, vary or suspend the parenting orders. It does not reflect a subpoena being sought in relation to SAPOL records of interview, if indeed they exist. It is the position, as far as the Court file reflects, that other than the notice of alleged abuse and the father’s brief affidavit, noting ninety days have now elapsed, the father was not obliged to file any evidence in relation to his contravention, nothing further appears on the Court file.
The parties were given an opportunity to make final submissions and it is fair to say that the matters as between the parties clearly are infected with a deep mistrust for each other which is able to be explained by reference to 11 years of high conflict litigation and allegation and assertion against the other as to whether each of them do or do not present as a risk to the child.
It is div 13A of pt VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention of orders made in respect of children. The following considerations apply to Count 1 of the application. Subdivisions C to F of Div 13A of Pt VII provide for the orders that are available to the Court that can be made in instances where:
(a)The contravention has been alleged but not established (sub-div C);
(b)The contravention is established, but reasonable excuse for the contravention is found (sub-div D);
(c)The contravention is found to have occurred without reasonable excuse, and the contravention is less serious (sub-div E); and
(d)The contravention is found to have occurred without reasonable excuse, contravention is more serious (sub-div F).
In relation to Count 1, the breach has been admitted but it is asserted by the father that he has a reasonable excuse for doing so. At the conclusion of the evidence and following the hearing of the submissions I had indicated to the parties that the Court would need to consider whether if the Count was found to be proven, it would be a sub-div E consideration, namely, less serious, or a sub-div F consideration, namely, more serious. I will say more on that in a moment.
Section 70NAC provides the meaning of what it is to contravene an order:
A person is taken for the purposes of this Division, to have contravened an order under this Act affecting children if, and only if:
(a) where a person is bound by the order - he or she has:-
(i) intentionally failed to comply with the order, or
(ii) made no reasonable attempt to comply with the order. …
Section 70NAE provides for the meaning of reasonable excuse for contravening an order. Subsection (1) provides that:-
The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances as set out in subsections (2), (4), (5), (6) and (7).
Subsection (2) provides that:
A person, [in this case, the respondent father] is taken to have had a reasonable excuse for contravening an order under this Act 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.
Subsection (2) demonstrably does not apply in the current case. The father is under no misunderstanding as to the order or his obligation as to the order. And he has agreed that he breached the order, and that he knew by the retention of the child that he was doing so.
Subsection (4) provides that:
A person, [in this case the respondent father] is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Subsection (5) provides that:
A person, [in this case the respondent father], is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the person referred to in paragraph (a).
Subsection (7) provides:-
A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:-
(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)[again, the period was not longer than was necessary to protect the health or safety of the child.]
It is clearly in respect of s 70NAE that the focus of these proceedings takes place. The Court is also obliged to consider the standard of proof, and in that regard, s 70NAF is to be considered, where sub-s (1) provides:-
Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
It is to be noted that the contravention proceedings are not to be dealt with pursuant to s 69ZN principles; that is in relation to contravention proceedings, the rules of evidence do not apply. Whilst the Court will consider the best interests of the child as a significant factor, it is not the same consideration that is given in a parenting case, where the interests of the child are the paramount consideration. That is, there is a very different circumstance when dealing with the contravention of an order. Again, it must be noted that the child had now remained with the father for about 90 days, and that there has been no application taken in relation to a variation or change of the orders.
I bring to account the powers of the Court as set out in s 70NEB. The Court has wide discretion in respect of the types of penalties that can apply in the circumstances where the Court decides that a contravention has occurred and in circumstances where a reasonable excuse is not made out. (I also bring to account the provisions of s 70NFB, which are the powers of the Court in circumstances where the Court determines that the breach ought to be characterised as a more serious breach). I bring to account the provisions of r 21.08 which sets out the procedures for the hearing and note that:-
At the hearing of an application, the court must:
(a)inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c)hear any evidence supporting the allegation;
(d)ask the respondent to state the response to the allegation;
(e)hear any evidence for the respondent; and
(f)determine the case.
As discussed, the single count was read to the father, and his clear response was that he admitted the breach subject to a contention of reasonable excuse. I reminded the parties of the provisions which provide for the meaning of the contravention of an order. In relation to the evidence I have already set out, the matters raised by the mother in her evidence supported by her affidavits, and by the father in his affidavit and his examination-in-chief. The difficulty for the father is that he alleges that the child is at risk in the mother’s home which is his explanation for his precipitous behaviour in retaining the child.
No evidence supporting risk has been presented by the father. It is also not supported by any application seeking to suspend and/or vary the order. It is not a matter where the Court is able to simply accept that the father’s assertion that the child is at risk, which satisfies on the balance of probabilities the establishment of evidence that the child is at risk in the mother’s home. The second aspect is that whilst there may well be the assertion of risk, it is not simply a matter where the father is able to do nothing.
He is obliged under the Act to ameliorate the risk in the sense that the compliance or the non-compliance with the order is available to him, but only for so long as is necessary. The mother acted in a timely fashion in bringing her application for contravention. The father has had ample opportunity to consider how he should go forward with the matter. Whether it is a matter of application to vary, or whether he should garner the evidence necessary to support the allegation that he makes and the basis upon which he says the child is at risk, it is open to him to maintain the defence of reasonable excuse.
The father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so.
The Court finds that the mother has established her case and that Count 1 is proven, namely, that without reasonable excuse the father has contravened orders made on 4 September 2013. The next step in the process is for a Court to hear and determine submissions by the parties in respect of penalty. The question of penalty is dependent upon whether I should apply sub-div E, that is a less serious breach, or sub-div F, a more serious breach. Subdivision F should only apply if the conditions in either ss 70NFA(2) or 70NFA(3) of the Act are satisfied.
Subsection (3) is applicable if this is not the first occasion that a contravention has come before the Court. This is also a matter where the parties have been in high conflict, but what makes the breach more egregious is that it has been ongoing now for 90 days. If this had been a matter that had been attended to promptly by the father, it may have well been the case that the Court should have considered the breach to be less serious. Despite the applicability of s 70NFA(3) I nonetheless retain the discretion to apply the provisions of sub-div E if I am satisfied that it is more appropriate for the contravention to be dealt with under sub-div E, namely, less serious breach.
The judgment of His Honour Cronin J in the Full Court decision of McClintock v Levier[1] confirms that the Court is required by s 70NFA to consider whether the matter should be more appropriately dealt with under sub-div E. The Full Court in Elspeth & Peter; Mark & Peter; andJohn & Peter[2] provides at [50] the following:-
[1]McClintock & Levier (2009) FLC 93-401.
[2]Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Given the consequences that potentially flow from treating the matter under subdivision F rather than subdivision E, we think it was incumbent upon the trial judge to spell out clearly what considerations enlivened the extra powers available under that section.
The requirement or the test that has to apply is whether a party has behaved in a way that showed a serious disregard of his or her obligations under the primary order. In the circumstances of this case I consider that I am able to be satisfied that the father has shown a serious disregard of his obligations under the primary order. The father’s evidence also brings to account that certain significant changes have been brought to bear in the child’s life by unilateral decisions without recourse to the mother in circumstances where the primary order provides for the parties to have equal shared parental responsibility.
Demonstrably, first and foremost, the child has not attended formal school education and no evidence has been presented in respect of any application that has been made to the relevant Minister, any approvals that have been given and the circumstances and/or statement of the curriculum that has been put in place for the child’s education or the ability of those who would seek to home school the child in that regard. That is not to suggest that those things are not able to be satisfied, but it is to highlight that no evidence or attempt has been made to present those matters to the Court and whatever advantages or disadvantages may ultimately inure to the child in respect of home schooling.
The very admission by the father that such a dramatic step has been taken in circumstances where the mother’s consent has not been forthcoming and the current contention between the parties as to whether approvals have been given by the school or the Department of Education the curriculum and/or form advice and assistance has been given by the principal of the Kapunda school are matters that highlight the issue.
Accordingly, I consider that I should apply the provisions of sub-div F of div 13A of pt VII of the Act, namely, that the contravention should be treated as a more serious contravention and that the appropriate range of penalties in respect of s 70NFB apply. Accordingly, and for those reasons, I find that Count 1 has been proven.
Having determined that Count 1 is proven, focus has now turns to penalty. I have heard some submissions from each of the parties. The father urges me not to impose a Bond, because he apprehends that it may place him in a difficult position in the sense of his preparedness to comply with the terms of a Bond that would require him to comply with Court Orders.
Notwithstanding that submission, I have determined that the evidence supports a breach of the order and that there is no other evidence which assists me in suggesting that some other form of penalty is more appropriate. I have determined that the father should enter in to a Bond to be of good behaviour, and to obey and comply with orders of the Court for a period of one year from the date upon which the Bond is entered in to. As a result of that determination the provisions of s 70NFE are required to be considered.
More relevantly, in respect of sub-s (5) I have canvassed carefully with the father the matters raised in that subsection to ensure that he understands the nature of the Bond, the purpose and the effect of the requirements and the consequences that will follow either if he fails to enter into the Bond, or have he entered into the Bond, fails to act in accordance with the Bond. I will give some short time for the father to reflect upon those matters and to make his decision as to whether or not he proposes to enter in to the Bond.
The mother seeks, not surprisingly, that the child be delivered up to her pursuant to the terms of the order of 4 September 2013. The father foreshadows that he may well seek to vary the terms of that order. Whilst I have the ability under s 70NBA to make parenting orders or altering or changing those orders, a variation of parenting orders pursuant to s 70NBA should not be approached differently to any other application for parenting orders. Whilst in some circumstances s 70NBA can be given effect in a summary way, orders being proposed by each of the parties are not capable of summary determination.
The father foreshadows that he will bring the application to vary the final orders. The mother foreshadows that she will bring an application for recovery. They are not summary matters. They are substantive considerations and I do not consider that the application of s 70NBA flows naturally in terms of me being able to resolve those potential issues at the time. I propose to give the parties an opportunity to put their house in order and to, if necessary, reignite their litigation. It is a matter entirely for them as to what applications they will ultimately file.
To the extent there has been some difficulty with the Registry, I will make an order which will give leave to the parties to file their proceedings so that there can be no impediment. I will also foreshadow that further consideration of the proceedings will be adjourned to 2.15 pm on 11 October 2019. On that occasion I will hear whatever is before me, but in particular, I will hear any further submission in circumstances where the father may determine that he does not wish to enter into the Bond. That is entirely a matter for the father. So that will be the prime focus for the parties who will have the ability to bring other applications before me if they so choose.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 September 2019.
Associate:
Date: 13 November 2019
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