H & H

[2006] FamCA 637

[2006] FamCA 637

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA85 of 2005

(No. BRM8172 of 2003)

BETWEEN:
  H

Appellant Mother

AND:
  H

Respondent Father

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              14 July 2006

Date of Judgment:            21 July 2006

Appearances:  Mr Rosen, solicitor, instructed by Rosen Solicitors, appeared on behalf of the Applicant Mother

The father appeared in person

H and H  NA85 of 2005 (BRM8172 of 2003)

Heard:             14 July 2006
Delivered:        21 July 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – CONTRAVENTION OF COURT ORDER – Some parenting orders between the parties were pronounced by Bell J on 7 April 2005. The formal orders, however, were not issued until 18 July 2005 – In August 2005, the father instituted proceedings for contravention of the parenting orders, submitting that the mother refused telephone contact on 6 occasions between June and 21 July 2005 – Before the Federal Magistrate the evidence about whether any order for telephone contact had been pronounced on 7 April 2005 was unclear and the Federal Magistrate noted the lack of clarity – However, the Federal Magistrate found that the mother had contravened the orders and ordered that the mother be placed on a good behaviour bond for a period of 3 months – The mother appealed, arguing that the order for telephone contact was not operational at the time the acts of contravention occurred – Further evidence on appeal established that no order for telephone contact was pronounced prior to the issue of the order on 18 July 2005 – A person can only be found guilty of contempt or contravening court orders if the person is bound by those orders – The onus was on the father, at least on a prima facie basis, to show that the mother was bound by the order – As there was no evidence that, by 21 July 2005, the mother knew of the order issued 18 July 2005, she could not be bound by it.

COSTS – The mother sought an order that the father pay the mother’s costs of and incidental to the appeal or, in the alternative, that a costs certificate be issued –Notwithstanding the mother’s success in the appeal, no effort was made by the mother at the hearing at first instance to properly apprise the Federal Magistrate of evidence which would have provided clarity regarding the pronouncement and/or issue of the order – These matters militate against the mother receiving either costs or the grant of a costs certificate.

Georgopoulos and Georgopoulos (1983) FLC 91-305
Moore and Moore (1996) FLC 92-670
Sahari and Sahari (1976) FLC 90-086

Appeal allowed.  Findings of contravention made 31 October 2005 set aside.  Order imposing good behaviour bond set aside.  Father’s application filed 1 August 2005 dismissed.  No order as to costs.  Application by mother for costs certificate refused.

1. On 31 October 2005, Jarrett FM found that the mother had, without reasonable excuse, contravened orders for contact between the father and their two children.  The contravention found was that, in default of orders of the Family Court of Australia “made” 7 April 2005, the mother failed to allow the father telephone contact with the children on 6 occasions, in June and July 2005.

2. Against this order the mother has, in some ways surprisingly, appealed.

3. I say “surprisingly” because the order of the court was that the mother be placed on a good behaviour bond to comply with contact orders for a period of 3 months.  That period has long ago expired.  It would in any event hardly appear to have been an order of onerous consequences for the mother.  Her appeal is brought because, as explained by her legal representative, if she is again found to have contravened orders and the contravention appealed stands, she will not on the future occasion present as having a “clean slate”.  That may affect what sanctions are applied on this prospective trial.

4. To appeal an order to preserve innocence on the record in case you are found guilty of an offence later is no doubt the mother’s right, but the action carries disquieting connotations.

5. Though the proceedings before me are by way of appeal, significantly, though not exclusively at my instigation, I have received further information (than that before Jarrett FM) bearing upon the state of the court record at pertinent times.  On the material initially presented, there were real questions about firstly, whether and when any order for telephone contact was pronounced, the terms of any order pronounced, and the date upon which any order for telephone contact formally issued.

6. The proceedings before me took on something of the character of a hearing de novo.

7. Notwithstanding that for a Judge to seek further evidence is unusual, having regard to the nature of that evidence, relating directly to the court’s own process, I considered the action appropriate.  In any event, I gave each party the opportunity of commenting on the course I proposed.  It was because of my requests that the matter first came before me for hearing on 19 January 2006, was adjourned to 15 May 2006 and then adjourned again until 14 July 2006.

8. There are two grounds in the Amended Notice of Appeal.  The first asserts that the order for telephone contact was not made by Bell J on 7 April 2005, but rather ultimately came about through agreement between the father and the mother and had not in fact issued as at 21 July 2005, the last date as to which a contravention was found.  Other matters said to indicate error in the Federal Magistrate’s findings were also set out.  Ground 2 attacked, as an inappropriate sanction, the placement of the mother on a good behaviour bond.

9. The orders sought in the Amended Notice of Appeal were that the application for contravention be dismissed or alternatively the mother be dealt with under Stage 1 of the Parenting Compliance Regime.

10. I will return to the grounds of appeal after a short summary of the reasons of the Federal Magistrate, discussion of the course of the hearing before Jarrett FM and of the further evidence received.

Summary of the reasons of the Federal Magistrate

1. There were 2 contravention applications before Jarrett FM in October 2005, one by each party against the other.  In respect of the father’s application, the learned Magistrate referred to counts 3 to 17 which dealt with:

   “2.    …an allegation that the mother breached the orders made by Bell J that were ostensibly made on 7 April 2005 in that telephone contact has not occurred on a Thursday night as ordered.

2. His Honour then said:

   “3.    The mother says in fact contact has occurred on a Wednesday night, not a Thursday night and that the fact that contact has occurred means that there is a reasonable excuse, it seems, for the contravention of the order, and that goes to a period in June of this year.  Thereafter there seems to be no evidence that there were any telephone calls at all.  Certainly the father swears to there being none and the mother does not swear that there were any telephone conversations in fact.

   4.     The issue is complicated because it is suggested in submissions, although again there was no evidence of it, that the orders were not issued on 7 April 2005 and that the telephone contact order came about as a result of subsequent negotiations between the parties.

   5.     There is some support for that in the evidence, and particularly in a letter from the child representative to the father's solicitors of 29 June 2005: see exhibit SGH3 to the mother's affidavit filed on 24 October 2005.  Mr Grant, the child representative, says this:

   In the meantime could you please advise whether or not agreement has finally been reached between yourselves and the mother's solicitors with regard to the form of the final orders?   If so please advise whether the orders been filed in the Court for consideration by Bell J.

   6.     That is consistent with the notion that notwithstanding the trial and reasons for judgment on 7 April 2005, by 29 June 2005 the formal record of the order had not yet been made and signed.  It might be the case therefore, although it is not at all clear, that the orders that the father seeks to enforce were in place.” (emphasis added)

3. His Honour then set out the terms of section 70NC of the Family Law Act 1975 which provides the meaning of the phrase “contravene an order”. He then said:

   “8.    The evidence satisfies me, and in particular exhibit 2 satisfies me, that on the occasions set out in counts 3 to 11 of the father's application for contravention there was a telephone call the day before the day when there ought to have been a telephone call. 

   9.     In respect of counts 12 through to 17 however there is no such evidence.  Exhibit 2 demonstrates that the last telephone call on a Wednesday was on 8 June 2005.  Now those records only cover April, May and June.  But presumably, given that it is now October and if there had been telephone calls for the balance of June and July, those accounts would have shown those telephone calls.  The fact that the documents are not produced tends to indicate that there were no calls as the father alleges.  In the absence of any sworn evidence from the mother about the calls on those days or on the days before, I am satisfied that counts 12 to 17 have been made out.

   10.    In respect of counts 3 to 11, I am satisfied that the mother has a reasonable excuse for contravening the order.  There can be no doubt that failure to call on the Thursday was a contravention of the order, assuming that the order had been issued, but there was a reasonable excuse for contravening the order because there had been lengthy telephone calls the day before each of the alleged contraventions.”(emphasis added)

4. Jarrett FM then turned to address other allegations of contravention in the application of the father, to do with aspects other than telephone contact, before turning to the application by the mother.  After dealing with those matters, he returned to consider the consequences of his findings of contravention with respect to telephone contact.  He said:

   “26.  Having found that the mother has contravened the orders in this matter, it falls to me now to determine what sanction, if any, I will impose.  The breaches relate to telephone contact and that was described by [the mother’s solicitor] as a minor matter.  I do not consider that it is.…

   27.    In those circumstances, telephone contact becomes all the more important because it is only means by which there is contact between the father and the children, and in those circumstances, it seems to me, that a failure to comply with the orders with respect to telephone contact is not a minor matter.

   28.    I am satisfied tat I should deal with this matter under stage 3 of the compliance regime of parenting orders.  I am satisfied that the mother has shown a disregard for her obligations under the primary order that is so serious that I should treat it as a stage 3 matter.  The impasse that was reached with respect to face to face contact is regrettable.  But what is even more regrettable is that neither party, and that includes the father, have been able to see their way forward from the impasse and in that respect one would have thought there would be some physical contact between the children and the father, save for the Father’s Day.

   29.    The fact that there has been no telephone contact in those circumstances where there has been such an impasse demonstrates to me the disregard that the mother has for the orders.

   30.    I propose to ask her to enter into a bond.  The bond will be of three months duration and will be conditioned on her being of good behaviour and complying with the orders of his Honour, Bell J, made on 7 April 2005.”

The course of the hearing before Jarrett FM on 31 October 2005

1. The father, who was unrepresented, was the first witness.  The first proposition put to him by the solicitor appearing for the mother was that, when the orders were made by Bell J on 7 April 2005, they did not include an order for telephone contact.  Although the father did not agree, it is clear then that the absence of an order for telephone contact was raised on the mother’s behalf.  However, it was later put by the mother’s solicitor that the order for telephone contact between the hours of 7.00pm and 7.30pm on Thursday evenings:

   “…was in fact put in the orders subsequently when the matter came before the court in about May 2005?”

2. It was also put that, prior to 7 April 2005 the orders provided for telephone contact each Wednesday.  With that proposition the father agreed.

3. Though the mother’s solicitor led some evidence in chief from the mother, the mother was not cross-examined.  During his submissions, the mother’s solicitor said, as to the alleged failures to provide telephone contact:

   “The difficulty with this one is that the order did not issue for some time after 7 April.”

4. Asked if there was any evidence of that, the mother’s solicitor said:

   “Only on the court file itself your Honour.”

   to which the Federal Magistrate responded that he did not have the court file.  The mother’s solicitor then continued with his submissions, referring to the provision of telephone contact on Wednesday nights in accordance with the previous order, though not on Thursdays.  The Federal Magistrate pointed out that that did not apply to the alleged breaches after June, as to which there was no evidence from the mother that telephone calls had been made.

The further evidence

1. The wife sought that the court receive further evidence, namely an affidavit bythe mother’s solicitor.  He deposed that:

   §  At the hearing of the application for contravention the Family Court file was not available to the court.

   §  He was present at the Family Court on 7 April when Bell J made orders which, however, did not include any provision for telephone contact.

   §  Telephone contact was negotiated separately and subsequently.

   §  The lodgement of the perfected orders was the responsibility of and was executed by the then solicitors for the father.

   §  He had searched the Family Court file and made enquires from “Casetrack”, which indicated that the orders issued on 18 July 2005.

2. I received this evidence.

3. There are on the Family Court file orders bearing the seal of the court dated 7 April 2005.  There is no indication within those orders that they issued at any time other than 7 April 2005.  The orders are arranged under the headings “Children’s Orders” and “Property Settlement”.  Included in the children’s orders was the following:

   “3.    That the father have contact with the children at all such reasonable times as may be agreed to in writing between the parties and failing agreement as may be ordered by the court but shall include:-

   …

   3.10  By telephone each Thursday between the hours of 7.00pm and 7.30pm with the mother to initiate the telephone call.…”

4. It seemed to me that, as I was told that no order for telephone contact was pronounced – as opposed to issued – on 7 April 2005, I ought know more of the proceedings on 7 April 2005 and, accordingly, I had reference to Bell J’s reasons for judgment of that date.

5. They disclose that when his Honour turned to the question of the contact that he might order, he said:

   “40.  [The mother’s solicitor] has put before me a rather complex – very complex form of draft order…”

6. His Honour then discussed various submissions touching on appropriate contact arrangements, before commencing to formulate orders for physical contact and the subsequent preparation of a report, as well as arrangements for contact if that report disclosed “no problems”.  His Honour then said:

   “45.  Otherwise, I would order in accordance with the draft put before me by [the mother’s solicitor].  First of all…”

7. His Honour subsequently indicated an intention to make orders in accordance with various paragraphs, obviously of the draft put forward by the mother’s solicitor, but not comprehensible to the reader unless that draft is available.  (Accordingly, I sought the draft.)  Shortly after, Bell J moved to speak of “Crowley’s draft” (Crowley QC then being counsel for the father) and the Judge discussed a particular matter raised in that draft.  However, his Honour did not otherwise seem to take up any of the terms, whatever they were, contained within that draft.  I have not seen any drafts.

8. As indicated, the further evidence shows that after the “pronouncement of orders” by Bell J on 7 April 2005 there were discussions between the parties about the content of orders but I know little of those discussions.  In his affidavit, the mother’s solicitor said:

   “5.    It took some time for the orders to be formally perfected between the parties’ respective solicitors before they could be ultimately lodged with the Family Court of Australia.”

9. Also, as noted earlier, in his reasons Jarrett FM made some reference to correspondence about the terms of orders as late as 29 June 2005.

10. As further noted earlier, in the proceedings before the Federal Magistrate, there was mention of a hearing before Bell J in May 2005.  I have received the transcript of the events that day.  Bell J was informed by the children’s representative that he understood there was:

    “…a brief argument in relation to the intention of some of the parenting orders.…”

11. His Honour was apparently handed a copy of proposed orders.  Discussion of numerous points followed, before the question of telephone contact was reached.  The following exchange occurred:

    “[COUNSEL FOR THE FATHER]:  3.10, your Honour is [the mother’s solicitor’s] suggestion and I think we’ve inserted – he said each Thursday between the hours of 7 and 8.  We suggest on non-contact Sundays and I understand there may be some resistance to that.”

    “[SOLICITOR FOR THE MOTHER]:  Your Honour made no order in relation to telephone contact.”

    [COUNSEL FOR THE FATHER]:  No.

    HIS HONOUR:  I don’t think I did.

    [SOLICITOR FOR THE MOTHER]:  We’re only prepared to consent to an order which provides for each Thursday and between 7 and 7.30 your Honour.

    HIS HONOUR:  Thank you.

    [COUNSEL FOR THE FATHER]:  Sorry, 7.30 pm and 8, wasn’t it?

    HIS HONOUR:  No 7.30 and 8, wasn’t it?

    [SOLICITOR FOR THE MOTHER]:  Seven and 7.30, your Honour.

    [COUNSEL FOR THE FATHER]:  Seven to 7.30.

    HIS HONOUR:  Seven to 7.30.

    [COUNSEL FOR THE FATHER]:  I see.  Well, we’re contending for the two contact Sundays.  We can discuss it outside if that’s the way to do it rather than have your Honour - - -

    HIS HONOUR:  Next one?”

12. There was then discussion of the property matters and an argument about costs.  Bell J indicated that he would make no order as to costs, after which he said “Thank you, gentlemen.”  This exchange then occurred:

    “[SOLICITOR FOR THE MOTHER]:  Thank you.

    [COUNSEL FOR THE FATHER]:  Your Honour, we will discuss outside.

    HIS HONOUR:  Yes, certainly you will.

    [COUNSEL FOR THE FATHER]:  Will we be able to interpose then just to - - -

    HIS HONOUR:  Certainly.

    [COUNSEL FOR THE FATHER]:  Certainly.”.

The grounds of appeal

1. Ground 1 in full is:

   “1.    The Federal Magistrate erred in finding any contravention of paragraph 3.10 of the Orders dated the 7^th of April 2005 thereof she failed to allow the father to have telephone contact with the children on the 16^th of June 2005, 23^rd of June 2005, 30^th of June 2005, 7^th of July 2005 and 21^st of July 2005.

   1.1The Order for telephone contact was not made by his Honour Justice Bell on the 7^th of April 2005.

   1.2The Orders for telephone contact came about as an agreement between the husband and the wife.

   1.3The Orders had not in fact issued as at the 21^st of July 2005.

   1.4The wife had been allowing telephone contact to occur on Wednesday nights in lieu of Thursday nights up to at least the end of June 2005.

   1.5The father admits in his evidence that that was occurring up to June 2005.

   1.6On the 25^th of June 2005 the husband retained the children contrary to the terms of the Orders thereby causing the children not to be involved in telephone contact.”

1. Some remarks about the content of this ground might be immediately made.  It is now established that the orders issued on 18 July 2005, not after 21 July 2005.  Secondly, the contention in points 1.4 and 1.6 would not seem to be the case relied upon by the mother at trial.  As was noted by the Federal Magistrate (paragraphs 3, 4 and 9 of his reasons earlier quoted) the mother gave no evidence about telephone contact post 8 June 2005 to the end of July.

2. I do not consider that any order for telephone contact was pronounced on 13 May 2005.  Moreover, the exchange establishes that no order for telephone contact was pronounced on 7 April 2005.

3. As to the case as it stood before Jarrett FM, I accept the submission for the mother that the learned Magistrate, having recognised that there was doubt about when the order for telephone contact was pronounced or issued, failed to resolve that doubt or to address the impact of unresolved doubt on the father’s application.

4. In my view, it was not possible in these circumstances for the Federal Magistrate to be satisfied that at the date of any of the alleged contraventions, the mother was bound by an order to give telephone contact.  On this basis alone, the appeal should be allowed.

5. As to the effect of the further evidence, while we know that an order issued on 18 July 2005, dated 7 April 2005, difficult questions about the date from which the order for telephone contact was intended to operate and/or in law, did operate, arise.  The unusual situation was that an order that had not earlier been pronounced, issued, but was “back-dated”.

6. In my view, it is not possible to ascertain the intention of Bell J, about the operation of the order for telephone contact, because there are no reasons that accompany the order issued on 18 July 2005, except in so far as the reasons of 7 April 2005 and the transcript of the hearing on 13 May 2005 go.  However, as seen, there is no reference to the order for telephone contact in either those reasons or that transcript.

7. As to operation at law in the absence of any evidence of intention (except for the act of “back-dating” – which in my view, could or should not be applied to the order for telephone contact given that it was not earlier pronounced), in my view the earliest date upon which the order for telephone contact could operate was 18 July 2005.  However, a person can be found guilty of contempt only if the person knew of the order (Sahari and Sahari (1976) FLC 90-086 (at 75,406) and Georgopoulos and Georgopoulos (1983) FLC 91-305 (at 78,028). There is no reason why the same proposition should not apply to contravention proceedings.

8. The evidence, including the further evidence, does not establish that by 21 July 2005 the mother knew of the order for telephone contact and therefore that the mother was a person “bound by the order”, as she had to be, before she could be in contravention of it (Section 70NC – as it then stood).

9. It seems to me, in the particular circumstances of this case, that the father had to establish, at least on a prima facie basis, that the mother was “bound by the order”.

10. Accordingly in my view, the further evidence also leads to the result that the appeal be allowed.

Re-exercise or remission

1. There are a number of factors that militate against remission.  While, in my view, a party might be bound by an order from when it was pronounced, as distinct from when it formally issued (see Moore v Moore (1996) FLC 92-670), as seen, there is nothing in the evidence which indicates a pronouncement at any time before the formal issue of the order. At the most then, all that could be remitted for rehearing would seem to be the allegation in respect of 21 July 2005. There may or may not be further evidence bearing upon whether the mother was bound by the order on 21 July 2005.

2. Remission would be in respect of a further contravention hearing about one occasion of missed telephone contact, in respect of which, when it was but one of a number of findings of contravention, the sanction imposed was a bond for a limited period and that period has expired.  Neither party pressed for remission.

3. By way of re-exercise of the discretion, in my view, having regard to what I have said of the circumstances and the effect of the material before me, I am not satisfied that a contravention without reasonable excuse constituted by the mother’s failure to provide telephone contact to the father on 21 July 2005 has been established.  This is because I am not satisfied that she was a person “bound” by the relevant order that issued 18 July 2005.

4. I note that s 70NAB in Division 13A of the Family Law Act, as it stands today, provides:

   “Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.”

5. The father’s contravention application should be dismissed.

Costs

1. The mother’s solicitor sought, in the events that have transpired, namely the appeal’s success and the dismissal of the father’s application, that the father pay the mother’s costs of and incidental to the appeal or, if that order not be made, a certificate under the Federal Proceedings (Costs) Act 1981.

2. Notwithstanding that the application for contravention was brought by the father and he carried the onus of proof as to contravention, the absence of an order for telephone contact, at least one made 7 April 2005, was raised by the mother.  However, no effort was then made to properly apprise the Federal Magistrate of the course of events now established by the further evidence before me.  Moreover, it would appear from the cross-examination by the mother’s solicitor, that the mother’s case (inaccurately) was that the relevant order was made, in May of 2005.  That approach may have contributed to the Federal Magistrate falling into error.

3. Even when the appeal presented for hearing, it was clear in my view, that many questions surrounding the pronouncement and/or issue of the order remained unclear.  They have only become sufficiently clear that the appeal might be justly disposed of, in very recent times.

4. In my view, these matters militate against the mother receiving either costs or the grant of a certificate.

ORDERS

1. That the appeal be allowed.

2. That the findings of contravention contained in paragraph (a) of the orders of the Federal Magistrates Court made 31 October 2005, be set aside.

3. That Order 1 made 31 October 2005 be set aside.

4. That the application of the father filed in the Federal Magistrates Court on 1 August 2005 be dismissed.

5. That there be no order as to costs of the appeal.

6. That the application by the mother for the grant of a certificate under the Federal Proceedings (Costs) Act 1981 be refused.